BQR18 v Minister for Home Affairs

[2018] FCCA 3689

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQR18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3689

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

Applicant: BQR18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 318 of 2018

Judgment of: Judge Vasta

Hearing date: 4 December 2018

Date of Last Submission: 4 December 2018

Delivered at: Brisbane

Delivered on: 4 December 2018

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 3 April 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 318 of 2018

BQR18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 6 August 2016, the Applicant, BQR18, arrived in this county.  He was here under a tourist visa.  Just over two months later, on 18 October 2016, he applied for a protection visa and was granted an associated bridging visa. 

2. The Applicant is a citizen of the Federation of Malaysia.  He was born on 23 September 1987.  In short compass, his claims are that he decided to be the guarantor for his friend.  His friend had borrowed money from loan sharks or, as they are known in Malaysia, ah long.  His friend defaulted and it seems has made himself scarce. 

3. The Applicant did not believe that he would be safe because the loan sharks would come after him and so he left and came to this country.  What he told the Administrative Appeals Tribunal (“the AAT”) was that the loan sharks have gone to his family twice since he has been in Australia trying to discover his whereabouts.  He said that he did try once to move within Malaysia but that the loan sharks have people all over.  The Applicant said that, in the event that he was to return to Malaysia, he feared being tortured and harassed by the loan sharks.

4. The country information relied upon by the AAT was that illegal money lending, or loan sharking, ah long, is an offence and persons can be fined between 20,000 and 100,000 units of Malaysian currency or can be imprisoned for up to five years.  The country information shows that loan sharking is a problem, that there was something in the order of about 40 million Malaysian currency units loaned by loan sharks up to 2013.  Most of the persons who borrow money from loan sharks were doing so because they were gamblers, drug abusers, failed businessmen and those living beyond their means.  There were about seven per cent of persons who had borrowed money from the loan sharks that were seen to be repeat borrowers. 

5. The country information suggested that police were powerless against the loan sharks as the transactions were on a willing seller/willing buyer basis.  Police, however, would take action if the loan sharks resorted to violence or extortion to recover their money.  There has been quite a deal of country information which shows that the police are trying to crack down on this practice.  There is quite a lot of advertising that is telling members of the public not to go into business with the loan sharks and the police operations have resulted in nearly 90 arrests in an eight month period after an operation targeting illegal money lending had occurred.  The country information was fairly substantial. 

6. The country information also about the legal system and the law enforcement was reproduced by the Tribunal to the effect that the Royal Malaysian Police were a professional and effective police force, though the quality of their responses varied depending on levels of training, capacity or engagement in corruption because the police received limited training, particularly on human rights.  Police officers were paid one of the lowest wages in the Malaysian civil service and corruption has been seen or recognised as a concern.

7. The Tribunal then looked at all of that country information, looked at all of the claims that the Applicant had made.  They came to the conclusion that the Applicant was who he said he was but, when it was that he gave his evidence, it was clear that he could not meet the refugee criteria simply because he was not a member of a particular group that was being persecuted. 

8. However, what his complaint really was geared to was whether the complementary protection criterion had been met.  That is, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia back to Malaysia, there was a real risk that he would suffer significant harm.

9. The Tribunal accepted that, as a result of being a victim of loan shark activity, the Applicant does have a risk of harm that includes severe physical violence and ill treatment that would amount to significant harm.  But, as the Migration Act 1958 (Cth) (“the Act”) says, there is no real risk of significant harm if the Applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that the Applicant would suffer significant harm. To satisfy the legislation, the level of protection offered by Malaysia must reduce the risk of significant harm to something less than a real one.

10. The Tribunal noted, in paragraph 33:

    33. The applicant’s evidence is that he tried only once to go to the police, but did not make a report.  The applicant says that he fears the loan sharks, and says they have visited his family.  The Tribunal considers that the applicant had not taken steps to obtain the state protection available to him in Malaysia, and that if he were to file a report, it would afford him with effective protection measures.  The applicant was capable of articulating his concerns, and is aware that he can make a report, and will be able to do so if it becomes necessary on his return. 

    34. Having considered the country information and the applicant’s evidence, the Tribunal finds that the applicant could obtain from an authority of Malaysia, protection such that there would not be a real risk that he would suffer significant harm for any reason should he return to Malaysia now or in the near future.

11. Therefore, he did not satisfy the complementary protection provisions.

12. That decision by the Tribunal was delivered on 7 March 2018.  On 3 April 2018, the Applicant filed his originating application.  The application is extremely vague.  All it contains are his grounds of application. He listed:

    1. Annexure 1, Refusal of visa application by Department of Home Affairs.

    2. Annexure 2, Administrative Appeals Tribunal Notification of Decision.

    3. Annexure 3, Administrative Appeals Tribunal Decision Record.

    4. Annexure 4, My brief immigration History.

    5. Annexure 5, My Statement of Reasons regarding Department of Home Affairs.

    6. Annexure 6, My Statement of Reasons regarding Administrative Appeals Tribunal.

13. When one then looks at his annexure 6, he really is giving a number of submissions that go to the facts of the matter.  If one does read those submissions, which amount to two pages, I agree with the Minister that there are able to be discerned three distinct complaints: 

    a)That the Tribunal failed to consider the country information provided by the Applicant; 

    b)That the Tribunal’s decision wasn’t open on the evidence;  and

    c)That the Tribunal failed to afford the Applicant procedural fairness. 

14. What the Applicant is submitting in those matters was that the country information that he had was something a little different to what the country information relied upon by the Tribunal.  Those matters that the Applicant puts in this statement are also matters that he had put in a submission to the AAT so all of that information was taken into account by the AAT. 

15. If one looks at what it is that the AAT have said at paragraph 4, the Tribunal noted that they had the submissions.  At paragraph 19, the Tribunal talked about the way in which the Applicant gave his evidence during the Tribunal.

16. At paragraph 28, the Tribunal talks about having considered the Applicant’s evidence.  And at paragraphs 33 and 34, the Tribunal talk about having considered the Applicant’s evidence again and having considered the country information with the Applicant’s evidence. 

17. It seems to me, when one looks at all of those matters, the Tribunal has plainly considered everything that the Applicant has actually put before the Tribunal, whether that be written submissions, other information and, of course, his verbal evidence to them.

18. Whilst the Tribunal may not have referred to all of those matters that the Applicant speaks of in his submissions, it is clear that the Tribunal does not need to do that.  It has said that it has looked at those matters and has expressed in their reasons what country information they have found to be credible, reliable and, most importantly, helpful in their consideration of this matter.  Therefore, I do not see, if that were a ground of this application, that it would have any merit.  It certainly does not establish any jurisdictional error.

19. As far as the ultimate conclusion that the Applicant could seek the protection of the state, such a conclusion was open on the evidence.  The country information was that police do take such things seriously, that they have made arrests for this crime and, certainly, if someone has been extorted or in any way physically assaulted because of this, the police step in. 

20. The fact is that that Applicant has not even made a complaint to police as yet.  It is very difficult for a Tribunal, in those circumstances, to come to a finding that the State would not, and could not, protect the Applicant.  Such a conclusion was well and truly open on the evidence.  In my view, there has been no jurisdictional error made by the Tribunal in this area.

21. In those submissions, the Applicant talks about feeling that he could not present what he wanted to at the hearing because he was extremely nervous and lacked confidence.  However, none of that could be seen to have breached the natural justice provisions of the Migration Act 1958 (Cth) (“the Act”), especially s.425. Paragraph 19 of the Tribunal’s reasons show that they noted that the Applicant was nervous, that they looked at a number of times that he mumbled and they asked him to speak up. He was able to answer the Tribunal in English on a number of occasions. Whilst he may have been nervous, it does not seem to me that he was deprived in any way of participating in the process.

22. It does not seem to me that there has been illustrated that there has been any breach of the natural justice provisions of the Act and, therefore, I do not find that there has been any jurisdictional error there.

23. The description given by the Tribunal in their reasons as to the manner in which the Applicant conducted himself is something that I have seen for myself today.  The Applicant has appeared unrepresented with the aid of an interpreter.  On a number of occasions, the Applicant did seem to lower his voice and almost mumble where the interpreter did have to ask him to speak up. 

24. But just as occurred in the Tribunal, it was clear to me that the Applicant understood what the questions were that were being asked of him and he responded appropriately. 

25. All he wanted to say to me was that he needed some more time and I asked for what reason did he need more time. He replied that the needed more time to get money and to settle his debt.  Unfortunately, that submission really is an application by the Applicant for impermissible merits review.  As I said to him, it is not whether I agree or disagree with the ultimate conclusion of the AAT, it is whether the conclusion that was made by the AAT was one that was open on the evidence.  In this case it clearly was. 

26. Therefore, I find that there is no jurisdictional error. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 January 2019