BPB17 v Minister for Immigration

[2017] FCCA 2863

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPB17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2863

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – whether the Tribunal denied the applicants procedural fairness – whether the Tribunal misapplied the law – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 476

First Applicant: BPB17

Second Applicant: BPC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1125 of 2017

Judgment of: Judge Street

Hearing date: 23 November 2017

Date of Last Submission: 23 November 2017

Delivered at: Sydney

Delivered on: 23 November 2017

REPRESENTATION

The applicants appeared in person.

Solicitors for the Respondents: Ms A Lucchese
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1125 of 2017

BPB17

First Applicant

BPC17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 March 2017 affirming a decision of the delegate not to grant the applicants protection visas.

2. The applicants are husband and wife and were found to be citizens of Malaysia and their claims were assessed against that country. The first applicant arrived in Australia on 8 March 2016. It was not until 13 May 2016 that the applicants made an application for protection. The second applicant was included as a member of the family unit of the first applicant.

3. The first applicant claimed he left Malaysia because he was in debt to a loan shark and unable to make repayments. The first applicant alleges he was threatened by loan sharks and that there is no state protection in place or ability to relocate. The delegate, on 21 September 2016, found the applicants failed to meet the criteria for the grant of a protection visa.

The Tribunal’s Decision

1. The applicants applied for review on 6 October 2016. By letter dated 17 February 2017, the applicants were invited to attend a hearing on 8 March 2017. The applicants appeared on that date to give evidence and present arguments.

Refugee assessment

1. The Tribunal, in its reasons on 23 March 2017, identified the background to the application for review. The Tribunal summarised the relevant law in Attachment A incorporated into the reasons of the Tribunal’s decision. The Tribunal summarised the applicants’ claims and evidence. The Tribunal was not satisfied the applicants entered into loan shark agreements with illegal moneylenders in Malaysia, were threatened by them, and left the country for that reason. The Tribunal provided detailed reasons in support of the same.

2. Firstly, the Tribunal identified that the applicants’ evidence at the hearing as to the circumstances of the loan agreements was hesitant, vague, brief, and undetailed. Secondly, the Tribunal also took into account that, at the hearing, despite the opportunity given to present material, no written documents were provided to corroborate the applicants’ evidence. The Tribunal referred, thirdly to there being no reasonable explanation provided by the applicants as to why they did not repay the money to their creditors, or part of it, rather than pay airfares, agent fees and other travel costs associated with travelling to Australia. Fourthly, the Tribunal identified inconsistency between the evidence provided to the Department and the evidence provided to the Tribunal.

3. When those matters were considered cumulatively, the Tribunal was not satisfied the applicants entered into 10 agreements with loan sharks or that they defaulted on payments. The Tribunal was not satisfied, therefore, the applicants were threatened by loan sharks on three occasions through notes and telephone calls, that the family was threatened, or that loan sharks came to the house to look for the applicants.

4. The Tribunal was not satisfied there was a real chance of serious harm, including being “injured or hit or other bad things” if the applicants returned to Malaysia in the reasonably foreseeable future. The Tribunal was not satisfied the applicants or their families suffered any harm from loan sharks or others in the past. The Tribunal found that, even if the applicants’ claims are to be accepted, that feared harm is not one falling within the five reasons set out in s 5J(1) of the Act. The Tribunal was not satisfied the applicants had a well-founded fear of persecution for one of the reasons enumerated in s 5J(1) now or in the reasonably foreseeable future if returned to Malaysia.

5. The Tribunal was not satisfied the applicants suffered any harm in Malaysia. The Tribunal was not satisfied that the applicants had a genuine fear of serious harm were they to return to Malaysia in the reasonably foreseeable future or that there was a real chance of serious harm for one or more of the reasons set out in the Act. The Tribunal was not satisfied that the applicants had a well-founded fear of persecution were they to return to Malaysia in the reasonably foreseeable future. The Tribunal found that the applicants did not meet the criterion under s 36(2)(a) of the Act.

Complementary protection assessment

1. The Tribunal was not satisfied on the evidence before it that there is a real risk that the applicants would be arbitrarily deprived of their lives or that the death penalty would be carried out or that they would be subject to torture or that they would be subject to cruel and inhuman treatment or punishment or that they would be subject to degrading treatment or punishment. The Tribunal was not satisfied the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review.

Proceedings before this Court

1. On 27 July 2017, a Registrar of the Court made orders providing the applicants with an opportunity to put on an amended application, affidavit evidence, and submissions. No such documents were filed.

Nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicants that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicants. The Court explained that the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if it was satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review.

2. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. The Court explained that it would have identified the evidence and then hear submissions from the applicants and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicants in reply.

3. The applicants put no submissions in chief, and the solicitor for the first respondent addressed each of the grounds in the application, explaining why the first respondent submits that none of the grounds make out any jurisdictional error. The applicants put no submissions in reply.

Grounds of the application

1. The grounds of the application are as follows:

   The Administrative Appeal Tribunal (AAT) erred in its decision that the NA Bella Excellence was owned and run by the first applicant.

   2. The Administrative Appeal Tribunal did not follow procedural fairness in not considering loan shark threat to harm the applicants and if they return to Malaysia.

   3. The Administrative Appeal Tribunal (AAT) erred in its decision that in Malaysia loan sharks has given extensive publicity and police warn about them.

   4. The Administrative Appeal Tribunal (AAT) erred in its decision that we have not received Malay interpreter. The applicants have been provided Indonesian with Malay background interpreter had Indonesian accent and we have interpreter problem.

   5. The Administrative Appeal Tribunal (AAT) erred in its decision at paragraph 15 that the Tribunal not satisfied that the applicant entered into loan agreement as applicant had oral agreement.

   6. The Administrative Appeal Tribunal (AAT) erred in its judgment not considering applicant interest in political party as many meetings were held in restaurant.

   7. The Administrative Appeal Tribunal made legal error at paragraph 18 to asked details about written agreement, interest rates, loan terms, time they have defaulted that in Malaysia sometime oral agreement.

   8. The Administrative Appeal Tribunal (AAT) in its judgment failed to use its reasoning in applying relevant act, rules and ministerial guidelines in consideration of provided facts and made legal error.

Consideration

Ground 1

1. In relation to Ground 1, the reference to NA Bella Excellence was a reference to an entity identified by the applicant in the protection visa application. There was no error by the Tribunal in that regard in summarising the applicants’ claims as identified in paragraph 10. No jurisdictional error is made out by Ground 1.

Ground 2

1. In relation to Ground 2, the Tribunal considered the applicants’ claims in relation to alleged loan sharks and made adverse credibility findings. Those adverse credibility findings were open for the reasons given by the Tribunal. The reasons were rational and logical. No jurisdictional error is made out by Ground 2.

Ground 3

1. In relation to Ground 3, there was no finding that, in Malaysia, loan sharks had been given extensive publicity and the police were warned about them or that the police warn about them. No such claim was advanced or evidence was advanced before the Tribunal. No such claim arose on the material before the Tribunal. No jurisdictional error is made out by Ground 3.

Ground 4

1. In relation to Ground 4, no issue of any difficulty with the interpreter is raised on the face of the Tribunal’s reasons. There is nothing to suggest that any such difficulty was raised in the course of the hearing before the Tribunal. No evidence has been put on to suggest that there was any difficulty with any material matter in respect of the interpretation before the Tribunal. On the face of the material before the Court the applicants had a real and meaningful hearing before the Tribunal. No jurisdictional error is made out by Ground 4.

Grounds 5 and 7

1. In relation to Grounds 5 and 7, these Grounds seek to take issue with the adverse finding by the Tribunal that there was no loan agreements. That adverse finding was open to the Tribunal for the reasons given by the Tribunal. The Tribunal did not reason by reference to absence of written material alone in rejecting the applicants’ credit. The adverse credibility findings cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by the Grounds 5 and 7.

Ground 6

1. In relation to Ground 6, the claim to fear harm by reason of meetings involved with a political party, was raised by the applicants. No such claim arose on the material before the Tribunal. A claim not advanced or arising on the material before the Tribunal cannot give rise to any jurisdictional error. No jurisdictional error is made out by Ground 6.

Ground 8

1. In relation to Ground 8, on the face of the Tribunal’s reasons, the Tribunal complied with its statutory obligations in the conduct of the review. Based on the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. Ground 8 fails to identify any jurisdictional error.

Conclusion

1. As the application fails to identify any jurisdictional error, the application is dismissed.

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

Associate:

Date:  24 January 2018