APG16 v Minister for Immigration

[2017] FCCA 2846

FEDERAL CIRCUIT COURT OF AUSTRALIA

APG16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2846

Catchwords:
MIGRATION – Application for judicial review – application for extension of time – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: APG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 570 of 2016

Judgment of: Judge Riethmuller

Hearing date: 13 October 2017

Date of Last Submission: 13 October 2017

Delivered at: Melbourne

Delivered on: 13 October 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the  First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1,832.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 570 of 2016

APG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore)

1. This is an application for reinstatement of an application to extend time to bring an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The Tribunal had decided on 8 February 2016 to affirm the decision of a delegate of the Minister to refuse the applicant a protection visa. 

2. The applicant’s judicial review proceedings were filed out of time on 31 March 2016.  When the case came before the Court on 19 July 2017, the applicant did not appear, and the case was dismissed. 

3. The applicant explains his non-appearance in July in his affidavit filed 5 September 2017, saying:

   5. My medical condition was crucial, on hearing date I was having severe pain in tommy and also I am residing in country Victoria (Mildura), that is the reason I wasn’t able to come for hearing.

   6. Due to severe flue and fever make me unconscious as I have forgotten the hearing date.

   7.  I am requesting the Federal circuit court to reopen the file for me as I have hope that I could get the positive decision.

4. The applicant has not provided any medical evidence in support of this claim; however, it seems to me that the case is more appropriately disposed of on the question of whether or not he has an arguable case.  For the same reason, the extension of time application, in substance, rises or falls on whether or not he has an arguable case on the substantive matter.  I turn, then, to consider the substantive issues.

5. The applicant is a citizen of Malaysia who came to Australia in April 2014.  The applicant applied for a protection visa in July 2015, giving the following reasons:

   My life is in danger.  I borrow some money from the money lender to develop my business.  However, my business wasn’t doing well.  And because of that I couldn’t pay back the money to the money lender.  He started to threaten me that he will whack me and kill me if I didn’t settle the money immediately.  I beg them to give me more time, but they refuse.  They started to follow me where ever I go and they did whack me a few time.  I did try to lodge police report but the police refuse to take because they already take bribe from the money lender.  They got very angry and came into my house and whack me again very badly. 

6. In October 2015, a delegate of the Minister refused to grant a protection visa.  In November 2015, the applicant applied to the Tribunal for a review of the delegate’s decision.  On 2 February 2016, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of a Mandarin interpreter. 

7. On 8 February 2016, the Tribunal affirmed the decision of the delegate to refuse to grant the visa.  The Tribunal rejected the applicant’s claims to fear harm from money lenders on the basis of concerns the Tribunal held with respect to the applicant’s credibility.

8. The Tribunal summarises the oral evidence given by the applicant in paragraphs 12 to 38 of its decision.  The Tribunal found the applicant’s claims to contain inconsistencies, stating:

   41.  The tribunal found the applicant’s oral evidence at hearing to be inconsistent in various significant aspects with information provided by him in his protection visa application.  Furthermore, various key aspects of the applicant’s evidence were vague and lacking in detail.  These concerns, coupled with the delay between the applicant arriving in Australia and seeking protection have led the tribunal to find that the applicant’s evidence is not credible.

9. The Tribunal went on to identify specific difficulties with the applicant’s evidence in paragraphs 42 to 45, saying:

   42. Various key aspects of the applicant’s claims have been inconsistent.  For example, the applicant claimed in his original visa application that he borrowed money from a money lender to ‘develop his business’.  This however, [is] inconsistent with his evidence before the tribunal as set out above, where he claimed that he borrowed various sums at different times in order to either pay back debts he owned to manufacturers or to pay back interest owed on previous debts.

   43. Furthermore, the applicant’s evidence regarding actions taken by money lender(s) has been inconsistent.  His original visa application refers to the applicant asking for time to pay the money, which the money lender(s) refused.  This is inconsistent with the applicant’s evidence before the tribunal indicating that he was given a week to provide money (although the tribunal acknowledges his claim that he asked for a month) and at a later date, three days, to provide funds.

   44. Of further concern is the applicant’s inconsistency in relation to harm faced at the hands of money lenders.  Despite initially stating at the tribunal hearing that he was smacked when he did not pay the money back, when specifically asked, the applicant claimed that he was never physically harmed by the money lender(s).  This is in contrast to his written claims, where he states that he was ‘whacked a few times’ by the money lender and/or his associates came to his home and ‘whacked’ him very badly.  The applicant mentioned no such incidents in his evidence to the tribunal.  Nor did he claim in his oral evidence to the tribunal that he was followed everywhere by the money lender(s).

   45.  Another inconsistency noted by the tribunal is whether the applicant reported the matter to the police.  His written evidence states that he did and further explains that the police refused to take the complaint because they has already taken a bribe from the money lender.  When asked, however, whether he had gone to the police, the applicant at his hearing claimed that he had not going to the police in relation to this issue.

   46. The tribunal finds the above inconsistencies, related to key aspects of the applicant’s claims significant.  It gives little weight to the applicant’s explanation that he does not know what his friend write in the visa application, given that the applicant initially stated that everything in his applicant was correct and in light of other concerns set out below.

10. The Tribunal also found other aspects of his claims were vague and lacking in detail, discussing these at paragraphs 48 to 50, where the Tribunal said:

    48. Firstly, the applicant’s evidence regarding what occurred after his business allegedly shut down was lacking in significant detail, apart from claiming that sometime in or after February 2014, money lenders or persons associated with him began threatening him.  The tribunal finds it difficult to accept that the applicant was unaware of which of the three money lenders he claimed to own money to were threatening and harassing him.

    49. The applicant referred to various incidents such as money lenders (or their associates) coming to his home on 4-5 occasions and pouring red paint on his home but did not provide any further detail about when this occurred apart from either ‘after’ or ‘in’ February 2014.  The tribunal further found the applicant’s evidence that, after receiving threats, he went into hiding for about month ‘everywhere, here and there’ to be vague and lacking in detail.

    50. The tribunal further found the applicant’s evidence about the money lenders’ contact with his family in Malaysia to lack credibility. The applicant’s claims that the money lender(s) he fears are vicious and will be able to find him throughout Malaysia are difficult to reconcile with him evidence that they have not been in contact with his wife for two years because she changed her phone number and that the money lenders left his parents alone after his father told them he does not have any money.  The applicant’s evidence about when the money lenders allegedly went to see his family and what was said was lacking in detail and vague, with the applicant being unable to provide details such as when the last time money lenders came to see his family.  As discussed with the applicant at hearing, this appears to contradict country information indication that many money lenders/loan sharks end up harassing the families of borrowers to repay the debt. [FN: ‘Loan shark menace worsens in M’sia’ 2013, The Sundaily, 2 October <htt:// 846038> <CX320169>.]

11. The Tribunal also considered the delay in bringing the protection visa application, saying:

    52.  The applicant provided various reasons for the delay when asked at his hearing, including that he wanted to earn money to pay back the lender, that he was unaware of the protection visas and that he was waiting for someone to help him with his application for free.  The tribunal notes that the last reason was raised by the applicant after the tribunal put to him that many people in the Robinvale migrant fruit picking community would be aware of the existence of protection visas. The tribunal further notes that the last two reasons provided by the applicant for the delay in his application are not entirely consistent with each other, with the latter reason indicating that the applicant may well have been aware of the option of applying for protection but did not wish to pay for it.  The tribunal further notes that the applicant was vague about his financial and employment circumstances in Australia and is of the view that the applicant has not been entirely truthful about his employment in Australia.  Given the above concerns and other credibility concerns highlighted earlier in this decision, the tribunal is not satisfied that any of the reasons given by the applicant satisfactorily explain the delay in seeking protection.

12. The Tribunal’s ultimate findings were:

    55.  Given its concerns regarding the applicant’s credibility, including in relation to inconsistencies, the tribunal does not accept that the applicant was threatened, harassed or harmed by money lenders and/or their associates including in the following way: being smacked or ‘whacked’ (or threatened with this); threatened with death, being beaten, having his house set on fire r put in a cave with a dog; followed by money lenders wherever he went; visited by men with axes and knives or having red paint poured on his home.  It follows that the tribunal does not accept that the applicant attempted to negotiate time for repayment with the money lenders or that they either refused or gave him one week and/or three days.  Given inconsistencies on that issue, the tribunal does not accept that the applicant reported the matter to the police or that the police refused to help him because they had already taken a bribe from the money lender.  Due to its credibility concerns and findings, the tribunal does not accept that the money lenders told the applicant that they have his photo or told his wife that they have sent people to find him. It follows from the tribunal’s findings that it does not accept that money lenders will come after the applicant if he returns or that they will use their powers to find the applicant upon his return via the MyKad and EPF system as claimed in his written application.

    56.  Due to concerns noted above, the tribunal does not accept that the applicant left his home after the money lenders gave him three days to come up with money or that he went into hiding for about a month before leaving Malaysia.  Given the concerns it has set out above, the tribunal further does not accept that the applicant’s wife or parents were ever contacted, visited or threatened by the money lender(s) or that his wife changed her phone number as a result.

13. As a result, the Tribunal was not satisfied that he was a person in respect of whom Australia has protection obligations, and therefore affirmed the decision not to grant him a protection visa. 

14. The applicant’s grounds for judicial review as set out in his application, are as follows:

    1.  The Tribunal does not accept that I owe money to the money lender.

    2.  The decision of the Tribunal member states that they are not satisfied of me being prosecuted.

    3.  The outcome illustrates that I will not be harmed from the money lenders. 

15. The applicant has not filed any written outline or other submissions going to the main question of whether or not the Tribunal erred. 

16. In oral submissions before me, the applicant merely complained about the outcome and sought a merits review.  The applicant was not able to identify anything that would indicate an error of law or procedural unfairness in the process adopted by the Tribunal. 

17. In the circumstances, I am not persuaded that the applicant has an arguable case for judicial review of the Tribunal.  As a result, there is no purpose to be served in reinstating the proceedings or granting the applicant an extension of time to bring the application. 

18. I therefore dismiss the application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  21 November 2017