BRU24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 198
•31 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BRU24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 198
File number(s): PEG 117 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 31 January 2025 Catchwords: MIGRATION – REVIEW OF ADMINISTRATIVE REVIEW TRIBUNAL – applicant self-represented – whether Tribunal erred in applying country information – whether Tribunal erred in failing to accept findings previously made – whether Tribunal erred in considering the applicant’s claim to experience harm as a result of her sexual identity – no jurisdictional error found – application dismissed with costs Legislation: Migration Act 1958 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Part 2 Division 1 Schedule 2 Item 3
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 31 January 2025 Place: Perth Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr Tomasi Counsel for the Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison ORDERS
PEG 117 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRU24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
31 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of Second Respondent be amended to “Administrative Review Tribunal”.
3.The application filed on 4 April 2024 is dismissed.
4.The applicant pay the Respondent’s costs fixed in the sum of $5,900.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
The applicant is a citizen of Taiwan. She is of Chinese ethnicity and of the Buddhist faith. She was born in Myanmar and relocated to Taiwan in 2004, two years after she finished school. Her Myanmar citizenship was automatically lost when she became a Taiwanese citizen.
The applicant last arrived in Australia on 7 July 2016 as the holder of an Electronic Travel Authority (class UD) (subclass 601) visa, having left Taiwan legally the day before. On 14 September 2016, the applicant applied for a Protection (Class XA) (subclass 866) visa in which she claimed to fear harm from a creditor who began to demand money from her and where gangsters were sent to stalk and threaten her. On 28 September 2016, the visa application was deemed invalid as the applicant was considered to be a national of both Taiwan and Myanmar.
On 30 September 2016, the applicant resubmitted an application for a protection visa, claiming that she is a citizen of only one country, being Taiwan. On 9 November 2016, the resubmitted visa application was again deemed invalid on the same basis as it had been the first time. On 10 November 2016, the applicant's representative wrote to the Department stating that although the applicant was born in Myanmar, she is not a national of Myanmar, and that she is only a citizen of Taiwan. On 11 November 2016, the applicant's representative was informed that the visa application remained invalid but that she was at liberty to file a new application with evidence of her citizenship status in both Taiwan and Myanmar.
On 15 November 2016, the applicant lodged a new application for a protection visa. In that application, the applicant claimed to fear harm from a moneylender. She said that she borrowed money from friends to buy a restaurant that she had been working at after the boss offered to sell it to her. She used all her savings to purchase the restaurant and the additional money was borrowed from friends. However, the boss ultimately refused to transfer the restaurant to her and refused to return her money. Her friends then began demanding money back from her and her salary was insufficient to repay the interest.
Her friends were related to gang members who were sent to stalk and threaten her, coming to her home and taking all her valuables, frightening her to death. She tried to seek police assistance, but the police said it was a personal matter between her and her friends, and they did not offer any help. The applicant said she was concerned that in a small country, gangsters are everywhere, and that she will be easily located wherever she goes. She said that if she is returned to Taiwan, she will have to live the life of being threatened and harmed, and she will not have any guarantees of her security unless she repays all the debt.
On 29 November 2017, the delegate refused to grant the applicant the protection visa. In refusing the application, the delegate was not satisfied that the written materials provided a sufficient basis for the applicant to be someone who owes loan sharks in Taiwan any substantial amount of money or that she faces harm of any kind for such a reason on her return to Taiwan.
On 13 December 2017, the applicant applied to the Administrative Appeals Tribunal for a review of the delegate's decision.
On 23 February 2024, the Tribunal informed the applicant that it had considered the material before it but was unable to make a favourable decision on that information alone. It invited her to appear before the Tribunal to give evidence and present arguments relating to the issues arising in her case, which was scheduled on 13 March 2024.
The applicant returned a response to the hearing invitation form on 27 February 2024, and she supplied the Tribunal with additional claims and evidence. In a further typed written statement that she submitted on 6 March 2024, the applicant said with reference to the loan to buy the restaurant that, with determination, she worked hard to repay her debts and, by 2020, she had repaid everything she owed, which is a big release in her journey towards stability and security.
However, she went on to say that in 2022, she invested in her friend's money lending business in Taiwan. She agreed to invest in the business and buy shares. She said that in June 2023, her friend declared bankruptcy and vanished, where she later discovered her involvement in underground money lending and fraud, leaving her with debts as one of the victims. She has been paying these debts off ever since, which has greatly affected her mental health, causing her anxiety and depression. She also said that as a lesbian who has never felt comfortable wearing feminine clothes since childhood, she has faced challenges in the past including fears of discrimination.
On 13 March 2024, the applicant appeared before the Tribunal and was assisted by a Mandarin interpreter. On 27 March 2024, the Tribunal affirmed the delegate's decision. The Tribunal summarised the applicant's claims that were made in the visa application, the procedural history, and the legal framework that applied to the review. The Tribunal set out and accepted the applicant's nationality and personal background. The applicant told the Tribunal with reference to her protection visa application and the statement that she supplied on 6 March 2024 that her original claims to fear harm were true and correct, that she was scared of being harmed by the loan shark because people had come to her home and taken items of value, and that the police had not helped her.
The applicant told the Tribunal that since she has worked in Australia, she has earned money and paid off the debt in full, and that her original impetus for leaving Taiwan and seeking protection in Australia no longer existed. The Tribunal accepted this evidence. The Tribunal went on to identify that the applicant had made new claims, which were summarised as being a victim in an underground money fraud in 2022 and 2023, as well as the claims made about the applicant's identification as a lesbian and the challenges that she has faced in the past due to fears of discrimination. The applicant gave further evidence to the Tribunal that her investment in 2022 and 2023 created a liability of one million Taiwanese dollars.
She thought that she was a shareholder but later found out that she was a co-owner with two other people and that she is responsible for the debt on this basis. The remaining co-owner in Taiwan told her about the collapse of the business, her ownership status, and her debt obligations. She has been dealing with this person. The applicant and the other co-owner felt scammed, and they initially refused to make any repayments to the creditor, described by the applicant as an underground bank. However, the co-owner was beaten up and photos of him were publicised. The applicant told the Tribunal that the police were called, but they told the co-owner that because it was not life-threatening and effectively a moneylending matter, they would not take any action. The applicant described the assault on the co-owner as a threat and a first warning.
Therefore, after that, negotiations were made to make repayments and an agreement was entered into. After some discussions, the applicant and the creditors agreed that the one million Taiwanese dollars was to be paid back over 10 instalments every three months. The applicant claimed at that point that she had made three instalments by way of money transfers to the co-owner in Taiwan, who had then made payments to the underground bank. The applicant also explained that she was worried about what would happen to her if she returns to Taiwan and cannot make the payments as agreed. She has seen news about people being stabbed by loan sharks and is worried that the creditor might arrange for people to come to her house and take valuables and intimidate her, and she is also concerned about public shaming.
The Tribunal accepted the applicant's claim that the debt arose in the context of her decision to invest in the now collapsed money lending business in Taiwan. It found that the applicant is currently partway through the process of paying off an amount of one million Taiwanese dollars owed to the underground bank in Taiwan, and the Tribunal found that she has paid off 300,000 Taiwanese dollars since June 2023. The Tribunal gave the applicant the benefit of the doubt and accepted that she is fearful of the consequences of failing to pay back the money to the underground bank.
The Tribunal also accepted the applicant's evidence about her sexual identity. It accepted that the applicant prefers to dress in a masculine manner and that she has a Chinese girlfriend who she met in Australia on a temporary visa and, acknowledging the sensitivity of these matters, also accepted that the applicant was not comfortable in raising the issue of her sexual identity in her visa application in 2016 because of the pressure she had experienced from her family in relation to these matters and privacy concerns.
The Tribunal then went on to set out country information which it had reviewed and taken account of in considering the applicant's claims, accepting the country information as correct and current and which it relied upon. In assessing the applicant's claims and with reference to the country information, the Tribunal was not satisfied that the applicant's fear of harm at the hands of the creditor in Taiwan was justified for a number of reasons that it went on to set out.
These were: first, that the incidence of violent crime in Taiwan is low and the likelihood of the applicant being physically harmed by the creditor is low; second, that the parties have reached an agreement on a series of payments and a series of payments have been made toward the debt and that this, as a change of circumstances - the payment schedule being put in place that is being adhered to - lessens the already low risk of physical harm posed to the applicant in the future; third, that the creditor has shown themselves to be amenable to negotiating a repayment schedule with the applicant and the Tribunal considered that the creditor would be open to renegotiating a new payment schedule with her in the future if it became necessary to do so for the balance of the debt as an alternative to physical harm; fourth, that in the event the applicant received a threat from the creditor or that her house might be broken into or that she became the victim of a property crime, the Tribunal considered that the applicant can report the matter to police and that effective assistance will be rendered to her.
Fifth, the Tribunal did not accept the applicant's evidence that the police will not protect her from harm and will only become involved in situations of a life-threatening danger as being against country information which it preferred. Also, the applicant's concern about the potential for the creditor to spread her photos around if she fails to meet the repayments does not involve serious harm or systematic and discriminatory conduct but rather a concern of public embarrassment about the debt that she has incurred.
The Tribunal therefore found that there was no real chance of the applicant being persecuted as a result of her debt in Taiwan. The Tribunal also accepted the applicant's concerns about her sexuality were genuine, in particular, her worries of returning to Taiwan because her family will not accept her identity and that her aunt will push her into a straight marriage. The Tribunal directed itself that it was required to conduct an objective examination of the facts to determine whether the applicant's fear is justified, and it was not satisfied that the applicant will experience harm as a result of her sexual identity for the reasons that it identified.
These were that the applicant's immediate family members live in Myanmar and that they will not be in a position to cause harm to her other than potentially expressing disapproval from afar. Also, the only family member the applicant referred to as living in Taiwan is her aunt. However, the Tribunal noted that the applicant is a 41 year old woman who has lived independently from her family, including her aunt, for a significant time, and the Tribunal did not accept that the applicant's aunt holds such a position of influence over her that she will be able to force her into hiding her identity or entering into a marriage with a man.
The Tribunal also relied on country information which said that LGBTI people in Taiwan are recognised and protected. Same-sex marriage is permitted and there are a number of legal protections against discrimination. The Tribunal found these to be safeguards in Taiwan if the applicant chose to be more open about her sexual identity than she had been previously and found that there is no real chance that she will be persecuted on this basis.
Having made these findings, the Tribunal went on to consider the complementary protection criteria and relied on findings made in the refugee assessment and considered the applicant's claims founded in her new debt and sexual identity categories. The Tribunal referred to the applicant's evidence given and found that in relation to the debt, the creditor is more likely to formulate a new payment schedule for her if required rather than to seek to inflict any physical harm on her. Where the Tribunal accepted that the applicant may be threatened with harm or intimidated by harassment or publicly denigrated nonetheless, the Tribunal was satisfied that the applicant could obtain adequate protection from authorities such that there would not be a real risk that she will suffer significant harm. The Tribunal found that at its highest, the harm the applicant will experience as a result of her LGBTI identity is her aunt's disapproval and pressure to marry a man.
The Tribunal found this fell well short of the types of harm that are encompassed within significant harm, including degrading treatment or punishment. Taking into account country information and the legal protections referred to already, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Taiwan, there is a real risk that the applicant will suffer significant harm. The Tribunal accordingly affirmed the delegate's decision not to grant the applicant the protection visa.
On 4 April 2024, the applicant applied for judicial review of the Tribunal's decision in this court. She has been self-represented throughout the proceedings, and there are three grounds of review that are pleaded. The applicant did not file and serve written submissions, any amended application, or any additional evidence further to the orders that were made on 27 June 2024. She explained to me that she preferred to rely on her written submissions made at the hearing.
As she was not legally represented, I am mindful of the remarks of Colvin J in DQQ17 v Minister for Immigration and Border Protection[1] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2]. The consequences of failing to particularise a ground depend on the circumstances. It will rarely be appropriate to dismiss an appeal or a review in a migration case for lack of particularisation where the applicant applies for relief arising out of a protection visa application, and they are self-represented. Ordinarily, and particularly in these circumstances, it is appropriate for the person to be given an opportunity to explain orally the matters that they say go to the grounds of review.
[1] [2018] FCA 784.
[2] BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
With this in mind, I provided the applicant with the opportunity to explain orally the matters that she said went to the grounds of review and to expand upon her grounds to help me understand the case that she was putting. I also explained to the applicant the limitations on the court's jurisdiction, that it is not permitted to conduct a merits review of the Tribunal's decision, and that it did not have the power to grant the applicant a visa.
I set out some of the commonly recognised categories of jurisdictional error and explained to the applicant that in order to obtain the relief she is seeking, she must show that the Tribunal's decision is affected by such an error as exceeding the limits of the decision-making authority conferred by the statute upon the decision-maker. I also explained that to amount to jurisdictional error, the error must be material in the sense that it could realistically have deprived the applicant of a successful outcome.
My assessment of the grounds advanced by the applicant is as follows.
Ground 1
Ground 1 goes to the Tribunal's finding that it was not satisfied that the applicant's fear of harm at the hands of the creditor in Taiwan in relation to the new debt is justified. It particularly points to error by the Tribunal in not applying country information flexibly to the applicant's claim. The Tribunal's use of and reliance on country information, as well as the weight to be afforded to country information, are matters for the Tribunal.[3]
[3] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.
The country information contained within the DFAT report about crime and the operation of loan sharks in Taiwan included information pointed to by the Tribunal that police are effective, and the crime rate is low. In not being satisfied that the applicant's fear of harm at the hands of the creditor in Taiwan is justified, the Tribunal did not make any finding that there was no crime in Taiwan. The Tribunal assessed as a starting point that the likelihood of the applicant being physically harmed by the creditor was low from the perspective of the societal norm based upon the country information that it had referred to, including in the preceding paragraph.
The Tribunal also relied upon and preferred country information to consider that the applicant can report the matter to police and that the authorities will effectively render assistance to her. The Tribunal did not accept the applicant's evidence to the effect that the police will not protect her other than if there is life-threatening danger. It accepted the applicant's evidence that the police were called in relation to her co-owner's assault.
That was consistent with country information and the Tribunal considered that the fact that there was no consequence could be explained by any number of reasons, including the complainant electing for the matter to not proceed or there being deemed insufficient evidence. Having regard to country information and those possibilities, the Tribunal did not accept the applicant's explanation that the police merely told the co-owner that they would only assist in life-threatening situations. The applicant told me that the reference to the co-owner in ground 1 was possibly a translation error, but I do note that there was no claim made before the Tribunal that she would face any harm as a consequence of whether the co-owner met their payments or not.
It is not only not a claim made, but it is also not one that arises squarely on the materials before the Tribunal. The country information referred to by the Tribunal referred to extensive CCTV coverage throughout Taiwan, amongst other things, as acting as a deterrent to criminal activity, and I do not consider there to be any jurisdictional error evident in the complaint in ground 1.
Ground 2
Ground 2 builds, in a sense, on ground 1 and asserts with reference to the same findings by the Tribunal that it failed to apply the applicant's claim previously accepted: that the police told her that it was a personal matter and would not help her.
As I have set out, the Tribunal did not accept the claim that the police told the applicant that it was a personal matter and would not help. The Tribunal made reference to this as part of the claims that were advanced by the applicant, firstly, in her original application for a visa and, secondly, when the Tribunal discussed that application with her at the hearing, and those claims were reiterated. The Tribunal accepted that the applicant travelled to Australia in July 2016 and, once in Australia, lodged a protection visa application which correctly set out the gist of her claims. It also accepted the applicant's evidence that she satisfied the debt from the loan shark since living in Australia and that she no longer fears returning to Taiwan in that context.
Those findings did not have any relevant bearing on the Tribunal's identification and use of country information which it preferred, particularly insofar as the effectiveness of police protection and authorities was concerned in Taiwan in the context of her claims made by way of the second debt that remains partially outstanding. The Tribunal did not make any findings that the Taiwanese police would not be prepared to become involved in personal matters either generally or specifically to the applicant's claims in relation to the first debt.
That was, as I have said, is a proposition that stands against the country information that the Tribunal preferred. I do not consider that ground 2 has been made out.
Ground 3
At the hearing, the applicant provided, effectively, an additional particular to ground 3. The error asserted by the Tribunal is in finding it was not satisfied that the applicant will experience harm as a result of her sexual identity in Taiwan for a number of reasons. The applicant said that she has always been discriminated against in Taiwan and pointed to some instances that pre-dated same-sex marriage becoming legal in Taiwan, and she also said that she faces or is concerned that she will face discrimination and harm as a result of her sexual identity, even though same-sex marriage is now legal and there are a number of legal protections afforded to people in Taiwan.
The Tribunal was entitled to rely on country information to the effect that LGBTI people in Taiwan are recognised and protected and that the legal system does not criminalise same-sex sexual conduct between adults; that same-sex marriage is permitted between Taiwanese nationals; and there are a number of legal protections against LGBTI discrimination. The finding that the applicant will be safeguarded in Taiwan if she chooses to be more open about her sexual identity than she has been previously was open on the evidence. In this context, the claim in ground 3 that Taiwanese society does not accept homosexuality is more in the nature of a mere disagreement with the Tribunal's conclusions, as is the claim that the applicant must hide her right as a lesbian to avoid being harmed socially.
The applicant told me that her experiences in Taiwan have left a deep scar in her heart, and they are consistent with the Tribunal's accepting of the applicant's circumstances and the sympathy toward them that the Tribunal expressed. However, I do not consider that there is any error in the Tribunal's findings that there is no real chance that the applicant will experience harm on the basis of her sexual identity when assessed objectively.
I do not consider there is any error in ground 3.
Orders to be made
I do not consider that there is any other jurisdictional error apparent in the Tribunal's decision as put forward by the applicant or otherwise.
In these circumstances, I dismiss the application.
Counsel for the Minister has applied for an order that the applicant pay costs fixed in the sum of $5,900. The applicant said that because she had been making repayments of the debt, she did not have the resources to pay a costs order. I explained to the applicant that this consideration is a different one to whether an order for costs should be made at all.
The applicant had no further submissions to make. In circumstances where the amended application is dismissed, I will order the applicant pay the Minister’s costs fixed in the sum of $5,900, which I note is within the amount specified in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021. I am satisfied that the amount sought is fair and reasonable.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 17 February 2025
0
3
2