Bug19 v Minister for Immigration

[2019] FCCA 3503

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUG19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3503

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in South Korea – applicant disbelieved in important respects and other fears found not to be well-founded – whether the Tribunal unreasonably gave no weight to the written statement of a proposed witness – whether the Tribunal misunderstood one of the applicant’s claims or displayed bias considered.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Minister for Immigration v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration v Stretton (2016) 237 FCR 1

Applicant: BUG19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1059 of 2019

Judgment of: Judge Driver

Hearing date: 14 November 2019

Delivered at: Sydney

Delivered on: 11 December 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application as amended on 26 June 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1059 of 2019

BUG19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 April 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from written submissions filed on behalf of the Minister. 

3. The applicant is a citizen of the Republic of Korea, who arrived in Australia on 5 August 2014 on an Electronic Travel Authority.[1]  The applicant applied for a student (subclass 572) visa on 9 October 2014, which was granted on 30 October 2014 and ceased on 15 March 2017.[2]

   [1] Court Book (CB) 65

   [2] CB 66

4. On 12 November 2018, the applicant applied for a protection visa.[3]

   [3] CB 3-49

5. On 26 November 2018, the delegate refused to grant the applicant a protection visa.[4]

   [4] CB 65

6. On 26 November 2018, the applicant applied to the Tribunal for review of the delegate's decision.[5]

   [5] CB 75

7. On 21 December 2018, the Tribunal invited the applicant to attend a hearing on 22 February 2019.[6]

   [6] CB 93

8. On 15 February 2019, the applicant's authorised representative (also his authorised recipient) emailed the Tribunal, attaching a number of documents in support of the application.[7]

   [7] CB 116

9. On 20 February 2019, the applicant's representative emailed the Tribunal, attaching further documents and requesting that the Tribunal take evidence from an overseas witness.[8]

   [8] CB 166

10. On 22 February 2019, the applicant appeared at a hearing before the Tribunal by videolink, assisted by his representative and an interpreter in the Korean language. Several witnesses also attended the hearing. The hearing was adjourned, part heard.[9]

    [9] CB 174

11. On 25 February 2019, the Tribunal invited the applicant to attend a resumed hearing on 8 March 2019.[10]

    [10] CB 182

12. On 26 February 2019, the applicant's representative emailed the Tribunal, requesting that the applicant appear at the resumed hearing in person, as the applicant had advised that:[11]

    during the last hearing, there were lot of disturbances which he advised that has prevented him to concentrate to provide his evidence. He also advised that some time, he found difficult to hear the interpreter as well.

    [11] CB 186

13. On 27 February 2019, the Tribunal emailed the applicant's representative, advising that the Tribunal had agreed to the applicant's request to attend the resumed hearing in person.[12]

    [12] CB 190

14. On 28 February 2019, the applicant's representative emailed the Tribunal attaching a number of documents including a statement from the applicant dated 24 February 2019.[13]

    [13] CB 195

15. On 8 March 2019, the applicant appeared at a hearing before the Tribunal in person, assisted by his representative and an interpreter in the Korean language. Two witnesses also attended in person.[14]

    [14] CB 219

16. On 21 March 2019, the applicant's representative requested time to provide a further submission.[15]  On 22 March 2019, the Tribunal agreed to provide the applicant until 26 March 2019 to provide further submissions.[16]

    [15] CB 224

    [16] CB 225

17. On 26 March 2019, the applicant's representative provided further information to the Tribunal.[17]

    [17] CB 227

18. On 5 April 2019, the Tribunal notified the applicant of its decision, made on the same date.[18]

    [18] CB 235, 239

Applicant’s claims

1. The applicant claims that:[19]

   [19] CB 241–243 at [12]–[35]

   a)from 1999–2007 he ran an import/export business, which he converted into a private company of which he was the Managing Director until October 2010;

   b)in 2008 he incurred a loss of AUD$3 million following the global financial crisis and was introduced to a private money lender, Mr J.[20] The applicant borrowed money from Mr J at a high interest rate of 30 per cent;

   c)he was unable to repay the loan and had to close his business in 2010 and his home and properties were seized for his bank loans, which he understood was done at the instigation of Mr J, who he also learned had a criminal and mafia gang;

   d)between November 2010 and July 2014 he did not work, and was supported by his church community;

   e)in November 2010 Mr J's “goons” demanded that he repay his debt by working on their illegal activities;

   f)in June 2011 Mr J was arrested and imprisoned until February 2012, during which time the applicant was forced to engage in illegal money lending by Mr J’s associate Mr L,[21] however in October 2011 he escaped and reported his problems to police;

   g)Mr J detained and threatened the applicant's friend in order to discover the applicant's whereabouts, however the applicant hid in his church for over a year in 2013/2014 until police found him after Mr J accused him of engaging in illegal money lending activities;

   h)in May 2013 the applicant was found guilty of engaging in fraudulent financial gain and given a suspended sentence; and

   i)he fears harm from Mr J's goons and that he will be forced to work for them again and does not believe he will be effectively protected by the police because Mr J has police connections and the means to find him in other parts of the country, and for being perceived as a wealthy person as a result of having been in Australia for some time.

   [20] The name has been anonymised

   [21] The name has been anonymised

Tribunal decision

1. The Tribunal summarised the applicant's evidence at hearing at [40]–[52][22] and [59]–[65][23] of its reasons, and the evidence of two of the applicant's witnesses at [66]–[68].[24]  The Tribunal noted that it had attempted to call the remaining two witnesses, who were based overseas, however the calls went unanswered.[25]  The Tribunal found the applicant to be a “difficult witness” at both hearings, finding that his evidence was “often disjointed, confused, inconsistent and difficult to follow”.[26]  The Tribunal:

   a)accepted that the applicant was a businessman whose business may have come under financial pressure around 2007/2008 and subsequently went bankrupt, that the applicant may have borrowed money in 2009 from a loan shark, Mr J, and failed to repay the amount owed, and that Mr J put pressure on him to repay the debt including by physically assaulting him in 2010;[27]

   b)accepted that the applicant was the subject of legal proceedings in Korea on two occasions, receiving a suspended sentence for non-payment of income tax in 2007 and a suspended eight month sentence in 2013 for involvement in illegal money lending, and that the applicant fears the legal ramifications of not having complied with the terms of his probation in 2013;[28]

   c)did not accept that the applicant was abducted and forcibly held against his will and made to engage in illegal money lending, nor that he twice escaped from detention;[29]

   d)found it significant that the applicant remained unlawfully in Australia from 16 March 2017 and did not apply for protection until after being taken into immigration detention following a criminal charge, and that this reflects poorly on his credibility and calls into question the veracity of many of his claims;[30]

   e)did not accept that the applicant made a complaint to police about Mr J's criminal activities;[31]

   f)was satisfied that the applicant can access effective protection measures in the event he is threatened by Mr J and/or his associates, or pressured to work for him or physically harmed in any attempts to recover his debt;[32]

   g)was satisfied that there is not a real chance that the applicant will suffer serious harm on return to Korea if the authorities seek redress for any breach of probationary requirements;[33] and

   h)was not satisfied that the applicant genuinely fears harm in Korea due to being considered a wealthy person after living in Australia.[34]

   [22] CB 244–245

   [23] CB 246

   [24] CB 246–247

   [25] CB 246, 250 at [66], [88]–[89]

   [26] CB 247 at [71]

   [27] CB 247–248 at [73]

   [28] CB 248 at [74]

   [29] CB 248–249 at [80]

   [30] CB 250 at [85]–[86]

   [31] CB 250 at [87]

   [32] CB 252–253 at [104]

   [33] CB 253 at [105]

   [34] CB 253 at [106]

2. The Tribunal was not satisfied there is a real chance that the applicant will be seriously harmed on return to Korea arising from a debt to a money lender or for any other claimed reason,[35] and found that he did not meet the refugee criterion under s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act). The Tribunal found that if the applicant fears significant harm from Mr J or anybody else, he can access protection from the police and other authorities which will reduce the risk of him being significantly harmed to a level which is below the level of a real risk, and it was not satisfied that there is a real risk that the applicant would suffer any significant harm if jailed for reason of breaching his probation.[36] The Tribunal was not satisfied that the applicant meets the complementary protection criterion under s.36(2)(aa) of the Migration Act.[37]

   [35] CB 253 at [107]

   [36] CB 253-254 at [108]

   [37] CB 253–254 at [108]

The current proceedings

1. These proceedings began with a show cause application filed on 2 May 2019.  The applicant now relies upon an amended application filed on 26 June 2019.  The grounds in that application are:

   l.Applicant never had a real and meaningful hearing because the Tribunal being unfair.

   a.The Tribunal imputed her mistake in regards to wording into applicant, then Tribunal considered applicant as uncredited.

   b.The Tribunal did not give a chance to applicant, applicant could explain or correct mistranslation by interpreter.

   c.The Tribunal considered that witnesses as valueless by unreasonable reason. And dismissed legit claim of applicant.

   2.     The Tribunal had judicial error.

   The Tribunal misplaced the reason why applicant seek protection.  As a result, she made a decision with misplaced reason.

   3. There was amount mistranslation amount to a material the breach of s425 jurisdictional error established.

   (errors in original)

2. The matter came before me for a show cause hearing on 3 July 2019.  At that time the applicant read various affidavits made by him and also made written and oral submissions.  I identified from the first ground in the application as amended an issue which merited a final hearing.  I made the following show cause order:

   Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to whether the attribution of no weight to the evidence of Pastor Lee as set out at [88] of the Tribunal’s reasons (CB 250) was unreasonable and, if so, whether it was material.

3. I also gave the parties the opportunity to file additional evidence and required further submissions in relation to the issue the subject of the show cause order.  The applicant filed two documents which appear to relate to his visa claims.  The matter was listed for a final hearing on 2 September 2019. 

4. The applicant failed to appear at the final hearing.  As there was no explanation for his non attendance and the Court was unsuccessful in attempting to contact him by telephone, his application was dismissed with costs at that time.

5. The applicant filed an Application in a Case seeking reinstatement of his application on 18 September 2019.  In short, the applicant claimed to have been involved in a motor vehicle accident which prevented him from attending court.  The Application in a Case was supported by affidavit evidence.  That application came before me for hearing on 14 November 2019, at which time the Minister opposed the reinstatement application and prepared to cross-examine the applicant on his affidavits as well as reading an affidavit by the Minister’s instructing solicitor.

6. In discussion between me, counsel for the Minister and the applicant, however, it was agreed that the preferable course was to reinstate the substantive application and hear it on a final basis instanter.  I therefore vacated the dismissal and costs orders made on 2 September 2019 and the matter proceeded as a final hearing.

7. For the purposes of the final hearing, I had before me as evidence the court book filed on 28 May 2019.  The applicant had also filed a document titled “statement of claim”, which I received as a submission.  Additional written submissions had also been filed on behalf of the Minister in preparation for the hearing on 2 September 2019.  The parties’ written submissions were augmented orally.

Consideration

The show cause issue

1. The issue arising from the show cause order I made on 3 July 2019 is whether the Tribunal’s attribution of no weight to the written statement of Pastor Lee, on which the applicant relied upon before the Tribunal, as set out at [88][38] of the Tribunal’s reasons was unreasonable, and if so, whether it was material. 

   [38] CB 250

2. In that paragraph, the Tribunal stated:

   The Tribunal has had regard to the letter provided by Pastor Lee Sung Goo which indicates the applicant stayed at his church a couple of times because he had problems with a loan shark.  The Tribunal notes that the identification documents provided for the Pastor variously spell his name as Seong Gu Lee and Sung Gu Lee, which both differ to the spelling of the Pastors name as it appears in his letter of support.  The Tribunal was requested to contact the Pastor by telephone to verify the information provided and attempted to do so at hearing.  However, the Tribunal’s calls went unanswered.  The Tribunal acknowledges the Pastor’s letter provides some support for his claims but without being able to further discuss the content of the letter with the Pastor and verify his identity the Tribunal cannot be certain the letter was officially obtained or that the information contained in the letter is anything other than what was reported to the Pastor by the applicant himself.  The Tribunal has afforded no weight to this evidence.

3. The applicant had contended that the Tribunal had refused to check the phone number for Pastor Lee when it was apparent from an error message that the number dialled by the Tribunal was incorrect.  The relevant part of the sound recording was played in court.  That established clearly that multiple attempts were made by the Tribunal to contact Pastor Lee by telephone and each attempt was unsuccessful.  It is true that one attempted call resulted in an error message and the applicant asked if he could check the number on his mobile phone.  The Tribunal member responded that she would check the number from the Tribunal’s records and a further call attempt was made which rang out, indicating that that number was different from the number called resulting in an error message.  I am satisfied from the sound recording from the Tribunal hearing that there is no substance to the applicant’s complaint.

4. The sound recording also confirms what the Tribunal states in its reasons, that there was nothing to verify the identity of Pastor Lee.  When I made the show cause order, I was concerned at the Tribunal’s statement concerning the variations of the spelling of Pastor Lee’s name.  As pointed out by the applicant in oral submissions at the show cause hearing, when words are rendered in the Roman script from a language using a completely different script, variations can be expected.  On analysis, however, I accept that that was not the essential reason why the Tribunal attributed no weight to the document purportedly prepared by Pastor Lee.  The essential reasons were the Tribunal’s inability to verify Pastor Lee’s identity or to check whether Pastor Lee was doing anything more than repeating what he had been told by the applicant.

5. I otherwise agree with the Minister’s submissions on this issue.

6. The Tribunal received at the hearing the contact details for the Pastor[39] as well as before the hearing.[40]  Paragraph [88] makes clear that the Tribunal made more than one attempted call to the Pastor which was unanswered.

   [39] see CB 179 and hearing record at CB 174

   [40] CB 111–115

7. In the purported letter from the Pastor, he relevantly said:[41]

   I got to know [the applicant] in 2011 by introduction of ‘Kim dae woon’, I had known before.  according to kim, [the applicant] was in big trouble from suffering by loan shark, and he needs help. he stayed at church couple of month in first time, and after Kim dae woon passed away, came back to our place. at that time, he was very dangerous.  I tried to help him from Gangs, but Police was also looks their side.  I have not deep knowledge about Law, but it was something wrong.  I recommended him to leave Korea.

   (errors in original)

   [41] CB 118

8. Notably, this purported letter from the Pastor provides very little detail and its broad outline was in substance accepted by the Tribunal.  In particular, the Tribunal:

   a)accepted that the applicant was a businessman whose business may have come under financial pressure around 2007/2008 and subsequently went bankrupt, that the applicant may have borrowed money in 2009 from Mr J, and failed to repay the amount owed, and that Mr J put pressure on him to repay the debt including by physically assaulting him in 2010;[42] and

   b)accepted that the applicant was the subject of legal proceedings in Korea on two occasions, receiving a suspended sentence for non-payment of income tax in 2007 and a suspended eight month sentence in 2013 for involvement in illegal money lending, and that the applicant fears the legal ramifications of not having complied with the terms of his probation in 2013.[43]

   [42] CB 247–248 at [73]

   [43] CB 248 at [74]

9. The only part of the letter that was perhaps not accepted is the ambiguous statement “I tried to help him from Gangs but Police was also looks their side.”  It is not clear if the Pastor did not understand the nature of the legal proceedings in which the applicant was involved or what the Pastor actually did to help the applicant beyond just giving him a place to hide and whether the Pastor had any direct dealings at all with the “Gangs” or the “Police”.  Without evidence from the Pastor to clarify this statement, it is not clear what real meaning or weight could be ascribed to the statement.

Relevant principles

1. In Minister for Immigration v Stretton,[44] the Full Federal Court (Griffiths J, with Allsop CJ and Wigney J agreeing) summarised the relevant principles with respect to unreasonableness as follows at [61]:

   The relevant principles established in Singh[45] may be summarised as follows:

   (a) legal unreasonableness “is invariably fact dependent” and requires a careful evaluation of the evidence.  The outcome of any particular case in which it is claimed that there has been a legally unreasonable exercise of a discretionary power will depend on the application of the principles from Li and the authorities discussed therein, rather than on an analysis of factual similarities or differences between individual cases, including Li (at [42]);

   (b) there is a presumption of law that the Parliament intends an exercise of statutory power to be reasonable (at [43]);

   (c) there are two species of legal unreasonableness, namely where the review court has identified an underlying jurisdictional error in the decision-making process but the concept of legal unreasonableness can also be “outcome focused” where there is no “evident and intelligible justification” (citing Li at [66] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J) (at [44]);

   (d) where there are reasons in support of an exercise of discretion, those reasons provide the focus for an assessment as to whether the decision is unreasonable in the legal sense and, in such a case, it would be rare where the reasons demonstrate a justification but the ultimate exercise of the power is found to be legally unreasonable ([45]–[47]); and

   (e) perhaps most importantly of all, the standard of legal unreasonableness applies across a wide range of statutory powers, but the indicators of legal unreasonableness are found in the scope, subject and purpose of the particular statutory provisions in issue in any given case, as well as being fact dependent (at [48]).

   [44] (2016) 237 FCR 1

   [45] Minister for Immigration v Singh (2014) 231 FCR 437; [2014] FCAFC 1

1. In this case, the Tribunal was confronted with the sparse contents of the letter and attempted more than once, as requested, to contact the witness to clarify his identity and his evidence.  Having been unable to do so, the Tribunal’s reasons for giving the letter no weight were cogent and persuasive.  The letter added little to the applicant’s claims and that part which was not already accepted by the Tribunal was so ambiguous as to be meaningless without more.  Further, a natural reading of the letter supports the Tribunal’s concern that the basis of the letter appears to be reports from the applicant.

Alleged misunderstanding by the Tribunal

1. At the final hearing on 14 November 2019, the applicant sought leave to reagitate Ground 2 in his amended application which (as noted above) is in the following terms:

   2.      The Tribunal had judicial error.

   The Tribunal misplaced the reason why applicant seek protection.  As a result, she made a decision with misplaced reason.

2. At the show cause hearing, I found no substance in that ground and, on hearing further from the applicant and counsel for the Minister on the issue at the final hearing, I confirm that view.  The Tribunal did not misunderstand the applicant’s claims for protection.  His claims are reproduced in the court book.[46]  The Tribunal recites those claims accurately at [34] of its reasons.[47]  The Tribunal discussed the claims at the hearing.[48]  Importantly, at [71],[49] the Tribunal stated as follows:

   The Tribunal found the applicant to be a difficult witness at both hearings.  His evidence about various aspects of his claims was often disjointed, confused, inconsistent and difficult to follow.  Noting this, the Tribunal summarised its understanding of the key aspects of the claims presented during the first hearing at the commencement of the second hearing and the applicant agreed, with a few exceptions, that the Tribunal’s reading of his claims was essentially correct.  The applicant did not suggest that there was any problem with the quality of the interpreting during the second hearing.

   [46] at CB 43

   [47] CB 243

   [48] CB 243-246

   [49] CB 247

Bias or procedural unfairness

1. In his submissions in reply, the applicant asserted that, at the Tribunal hearing, the Tribunal member demonstrated prejudgment amounting to bias.  He asserted that at various points during the hearing, the Tribunal was dismissive of his claims and evidence and that he had been upset by this.  The Minister had tendered the sound recording of both hearings conducted by the Tribunal.  I enquired of the applicant whether he was expecting me to listen to the full sound recording of both hearings in order to test his assertion.  He stated that this would not be necessary because he could identify from the sound recording (which he also had) the particular points of concern.  I provided the applicant with the opportunity to submit within 14 days the particular points during either hearing which gave him concern.  However, he did not take up that opportunity.  In the circumstances, I have not listened to the balance of the sound recording.

Conclusion

1. The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  11 December 2019