Bur16 v Minister for Immigration

[2019] FCCA 3306

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUR16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3306

Catchwords:

MIGRATION – Protection (Class XA) Visa Application – application for judicial review of decision of Administrative Appeals Tribunal – applicant not filing written submissions and making no oral submissions at trial – consideration of applicant’s claims and Tribunals decision – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424AA, s.424A

Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3, Division 1, Item 3

Cases cited:

SZBYR v Minister for Immigration and Citizenship (2017) 81 ALJR 1190

Applicant: BUR16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1510 of 2016

Judgment of: Judge C. E.  Kirton QC

Hearing date: 15 May 2018

Date of Last Submission: 15 May 2018

Delivered at: Melbourne

Delivered on: 20 November 2019

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs fixed in the sum of $5,800.

EDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 1510 of 2016

BUR16

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

and

ADMINSITRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant is a citizen of Malaysia who arrived in Australia on 24 February 2014 as the holder of an Electronic Travel Authority that expired on 10 December 2014[1]. The Applicant remained in Australia unlawfully until 5 May 2015, when she lodged an application for a Protection (Class XA) visa (protection visa application) [2].

   [1] Court Book (CB) 14 and 43. 

   [2] CB 1-27.

2. On 26 October 2015 a delegate of the First Respondent (Delegate) refused to grant the Applicant the protection visa (Delegate’s Decision).  On 27 June 2016 the Administrative Appeals Tribunal (Tribunal) affirmed the Delegate’s Decision (Tribunal Decision).

3. By an application filed on 15 July 2016 (Application), the Applicant seeks judicial review of the Tribunal Decision.

4. It should be noted that the Application itself and the supporting affidavit were probably, given the fluent English, drafted by somebody with some greater familiarity with the law than the Applicant.  Nonetheless, despite orders made by Registrar Caporale on 21 December 2016, the Applicant has filed no further materials, including not filing any written submissions.  At the hearing before the Court, the Applicant had nothing to add to the Application she had filed.  Given that the Application, in part at least, raises the question as to whether the Tribunal failed to take into account relevant considerations, a matter going very much to the detail of the Applicant’s claims from time to time and what the Tribunal made of them, and given the Applicant’s self-representation and consequential incapacity to articulate her case, I will commence by considering what the Applicant said from time to time and what the Tribunal concluded from it.

Applicant’s Evidence

1. When the Applicant lodged her protection visa application[3] she gave reasons for leaving Malaysia[4]. The Applicant asserted that she had the opportunity to open a temporary small stall at the night market, which she did with a small amount of capital and was “doing good”.  She asserted that to expand her business into a permanent stall she had obtained a large amount of money from a private financing moneylender because her banking documents were not capable of obtaining a bank loan.  Relevantly, the statement continued:

   “The business doing very well until one day something happened.  The night market had caught in fire and my stall was involved too.  All burned off.  I didn’t take any insurance coverage to cover all the losses.  After sometimes the moneylender start looking and chasing me for the repayment.  I got stucked and I cannot re-start to operate my stall anymore.  I use all my saving to pay them but still I owe them more as they charge me penalty every day.  With small salary I unable to pay them in one large sum.  The money lenders started torture me, and they were very rough and aggressive.  I was attacked and injured physical few times.  I was even detained in their custody for nearing 2 weeks to demand money and they started to torture my family.  After 2 weeks I received a letter from my employer, I got fired because I had failed to come for working for more than 7 days continuously.  As I was going through lots of torture, humiliation and attacks I was started hiding from them.  My family was very scared for my return to their home.  With all this terrible torture and life-threatening situation continues.  My parents sell their valuable things and give me money to start new life in other place.  I have no choice to leave my country.”

   [3] CB 1-27.

   [4] CB 18-19. 

2. The Applicant asserted:

   “Many times I was tortured, beaten and threatened to kill by these notorious money lenders and his gang members.  Few times they came to my house to demand money and making damage.  This creates fear and worry among my family and the neighbourhood.  We reported this incident, to the police many times but they are unable to do anything to prevent further.  They cannot guarantee my safety at all time. I was detained because of the police report made.  And they have warned me if I do that again they will kill me.  As my family members fear and in stress constantly, they wanted me to leave the country so that the situation cool down.

   If I go back to my country I have to face these harmful money lenders.  I possibly will be facing harassment and attack from them and even kill too.  I am so stressed and in tensed to go back to my country. 

   They (the money lenders) definitely will harm me and kill me.  I cannot risk my life and I do not want any of my family member to be harmed too.  If I were there all people surrounding me will be involved too and get attacked.

   As for now they did not harm my family members physically but many times they have warned my family if I have to be found they will beat me and even threaten to kill me.  I am in doubt I can get out of this problem that easily.”

3. The Applicant asserted:

   “I don’t think that the authorities of my country can help me.  They don’t even guaranteed and assure my safety at all time.  Furthermore as these kind of cases are common and regularly happen in my country, I am very sure I would not get protected even it is reported to the authorities.  Even previously there were lots of murder cases too happen by illegal money lenders even though it was reported to the authorities.  I am not confident enough that the authorities will protect me all the time. [7]

   With all this life risking situation I would rather stay here and seek protection from Australia to have a peaceful life and mind.”

   [7] CB 22.

4. The Delegate found that:

   a)“[…] the applicant has outlined her situation in minimal detail and with no supporting information”; and

   b)        The Applicant could, if need be, access effective State protection[8].

   [8] CB 43-56.

5. Following rejection of the Application by the Delegate the Applicant applied to the Tribunal for review.  The Applicant did not forward any further material to the Tribunal.

Tribunal Decision

1. The Tribunal set out the criteria for the protection visa and the complementary protection criterion in terms that, in my view, are completely unobjectionable[9].  I note on the same page under the heading Mandatory Considerations[10]the Tribunal observed:

   In accordance with Ministerial Direction No. 56, made under s. 499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   [9] CB 80, paragraphs 3 to 7.

   [10] CB 80, paragraph 8.

2. The Tribunal considered the claims and the evidence[11]. The Tribunal accepted that the Applicant was a citizen of Malaysia.  The Tribunal then traversed the Applicant’s written claims[12] that I have previously paraphrased above.  The Tribunal observed correctly:

   The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in section 5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Malaysia, there is a real risk she will suffer significant harm.

   [11] CB 81-85. 

   [12] CB 81-85, paragraphs 9 to 32.

3. The Tribunal[14] noted a number of alleged differences between what the Applicant had originally put in her protection visa application and what she said at the Tribunal.  Paraphrasing these are: 

   a)The Tribunal noted that the Applicant claimed in the hearing that she did not live anywhere in Malaysia other than Johor, but in her protection visa application had asserted she was living in Kuala Lumpur[15].

   b)The Applicant claimed at the hearing that she borrowed money from the Chinese moneylender because she did not have enough capital to do her business and confirmed that her business was not going well.  However in her protection visa application the Applicant claimed she wanted to borrow money because her business was going well and she wanted to expand it to a permanent one.  It was noted that at the hearing the Applicant had asserted she had taken two loans rather than the one originally asserted[16].

   c)The Tribunal noted that in the protection visa application the Applicant stated her business was doing well until the night market caught fire and her stall was burnt and that she lacked insurance but at the hearing made no mention about her business being damaged by a fire at the night market and this being a reason why she was unable to pay her loans.[17]

   d)In the hearing the Applicant claimed that when she stopped making payments on the alleged loans the Chinese moneylender came to her home on more than 10 occasions and threatened her family and the Indian moneylender threw paint at her home. The Applicant claimed she had no personal contact with either of the moneylenders apart from the Chinese moneylender sending her messages on her phone and the Indian moneylender calling her and asking her to have sex with him.  She confirmed neither of these persons saw her after she stopped paying them.  However, in the protection visa application the Applicant had claimed that she was tortured by the moneylenders, attacked and injured physically a few times and even detained in their custody for several weeks.  She had also claimed to have been tortured, beaten and threatened with being killed many times[18].

   [14] CB 82-83, paragraphs 17-21.

   [15]  CB 82, paragraph 18. 

   [16] CB 82, paragraph 19

   [17]  CB 82, paragraph 20. 

   [18] CB 82-83, paragraph 21.

4. The Tribunal continued:

   When the Tribunal put these differences to the applicant in the hearing, she claimed that a guy had completed her application form, that she had only told him that she had borrowed money and she did not know what was written in the form.  As the Tribunal noted in the hearing there is nothing in the applicant’s protection visa application form suggesting that she received any assistance in completing it. Further, even if the Tribunal accepts that the applicant may have had some help in filling out her application because she cannot write English, the Tribunal finds it far-fetched that the applicant would only have provided this person with minimal information regarding her experiences in Malaysia or that she had no knowledge of what was included in the form and what she had confirmed as being true and correct. The Tribunal also found the applicant’s evidence in the hearing, when these concerns were put to her, that she had in fact read what was included in her application form a month after lodging it and realised that this person had exaggerated her claims, concerning given her continued reliance on these claims despite them allegedly being an embellishment. In light of the above, the Tribunal does not accept that the applicant was not aware of or played no role in the provision of the information which formed the basis of her claims for protection as included in her protection visa application. As such, given the substantial and significant differences in the applicant’s evidence regarding her alleged experiences in Malaysia, the Tribunal does not find the applicant to be a credible witness.

   Further, the Tribunal found the applicant’s evidence in the hearing regarding her business and the loans she allegedly took to help this business to be vague.  She was unable to tell the Tribunal when she opened this business, other than that it was five or six years ago.  The Tribunal has difficulty accepting that the applicant would not be able to recall at least the year in which she started her business, particularly given her business appeared to be the central aspect of her alleged problems in Malaysia. Similarly, she was unable to tell the Tribunal when she allegedly borrowed money from the moneylenders.  She claimed she borrowed money first from the Chinese man about four years ago and the Indian moneylender 7 or 8 months later.  The applicant was also unable to remember the name of the Chinese person she allegedly borrowed this money from, suggesting that maybe it was Chin. The applicant also provided the Tribunal with very little detail about the terms of these loans that she allegedly took.  She was unable to tell the Tribunal what interest rate she was being charged by either loan shark, instead referring to amounts in ringgit.  The Tribunal also found the applicant’s evidence regarding what she owed to be confusing.  While she claimed that the loan of 10,000 ringgit she took from the Indian moneylender, she was required to pay 1200 ringgit per month, of which 120 ringgit was interest, she also claimed she had paid about 10,000 ringgit in interest only over a period of nine to 10 months.

   The Tribunal also found the applicant’s evidence in the hearing that she continued to run her business and have her stall and limited friends placed very close to her family’s home in Johor, despite the Chinese moneylender coming to her home on numerous occasions and threatening her family after she ceased making repayments five or six months after allegedly taking the loan, and she had no contact herself from this person, implausible.  The Tribunal finds the applicant’s evidence does not suggest that she was in hiding, as she claimed in the hearing.

   The Tribunal has also taken into consideration the applicant’s delay in seeking protection.  As the Tribunal put to the applicant in the hearing, she arrived in Australia in February 2014, yet she did not seek protection until May 2015, over a year later, despite the fact she claims she left Malaysia because of these alleged problems from the money lenders.  The Tribunal notes that it is well established the delay in applying for refugee status is a relevant consideration (reference to authority omitted). The Tribunal finds the applicant’s evidence in the hearing that she did not learn anything about seeking protection until some guy told her she could do so unconvincing.  The Tribunal finds the delay in seeking protection raises further doubts about the credibility of the applicant’s claims and the genuineness of her fear.”[19]

   [19] CB 83-84, paragraph 22-25.

5. After making these findings the Tribunal went on, having considered all the evidence before it, to determine that the Applicant’s claims were not accepted[20]. Accordingly, the Tribunal found that the Applicant was not a refugee and was not likely to face risk of significant harm should she return to Malaysia[21].

   [20] CB 84, paragraph 26. 

   [21] CB 84-85, paragraphs 27-32.

6. I now turn to consider the grounds of application.

Grounds of Application

1. The first ground of  the Application is stated to be as follows:

   The Tribunal did not make its decision of 27 June 2016 according to law, in that: 

   1.        The Tribunal denied the Applicant procedural fairness.

   PARTICULAR

   a.The Tribunal referred to alleged discrepancies in the Applicant’s claims in her application for protection and at the hearing in paragraphs 18 to 25, and relied on those discrepancies in drawing adverse findings about the Applicant’s credibility, which formed the basis of affirmation of the Minister’s decision.

   b.While the Tribunal has put these differences to the Applicant in the hearing (paragraph 22), the Tribunal failed to take steps in accordance with section 359AA of the Migration Act 1958.

   c.Section 359AA requires the Tribunal to ensure that the applicant understands the relevance and consequence of an adverse finding or information, orally invite the applicant to comment on or respond, and advise the Applicant that she may seek additional time to comment on or respond to the finding or information. 

   d.The Tribunal failed to advise the applicant that she may seek additional time to comment on or respond to the adverse finding.

2. The matter to be noted about this ground is that it is technically inaccurate. The reference to s.359AA of the Migration Act 1958 (Cth) (Act) should plainly, as the First Respondent’s (Minister) submissions correctly assert, have referred to s.424AA of the Act. As those submissions also correctly assert, inconsistencies in the Applicant’s evidence do not constitute information for the purposes of s.424AA.

3. In SZBYR v Minister for Immigration and Citizenship (2017) 81 ALJR 1190, the plurality of the High Court (Gleeson CJ, Gummow, Hayden and Crennan JJ) said at [18], relevantly:

   […] if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of section 424A(1).  Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”.  Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:

   does not encompass the Tribunal’s subjective appraisals, thought processes or determinations… nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc.

   If the contrary were true, 424A would in effect oblige the Tribunal to give advanced written notice not merely of its reasons but of each step in its prospective reasoning process.  However broadly information be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.

4. It is plain from this passage that the Minister’s submission that s.424A was not enlivened in this instance, is correct. I note that the Tribunal fairly put to the Applicant at the hearing the very doubts and inconsistencies which it felt the Applicant’s new accounts had given rise to.

5. Although it is not necessary because of the finding just made, I would further uphold the submission of the Minister that in any event, s.424A(3) of the Act would also apply. The material upon which the Tribunal relied was either material in the protection visa application or the material provided at the hearing. Plainly, the exemptions in s.424A(3) would have applied in any event.

Ground 2

1. The second ground of  the Application is stated to be as follows:

   2.        The Tribunal failed to take into account relevant considerations:

PARTICULAR

a.In drawing an adverse finding about the Applicant’s credibility, the Tribunal referred to the applicant’s inability to give precise details about the relevant events (paragraphs 20 and 23) and the differences between the applicant’s claims in her application and at the hearing (paragraph 22).

b.In its consideration of the above matters, the Tribunal failed to take into account the following considerations: 

i)First, mitigating circumstances might exist to explain her inability to give details about relevant events, and the differences or discrepancies of her claims.  Such circumstances included lapse of time, forgetfulness, and that the Applicant may not be able to remember all the details of their personal history or reconstruct the chronology of particular events (see paragraphs 20 and 22, and Part 11 of PAM3 ‘Refugee and Humanitarian – Asylum Claims – Assessing Credibility)’. 

ii)Second, the Applicant’s claim being exaggerated by the person who assisted her in preparing her application (paragraph 22).

1. As the Minister’s written submissions again correctly assert, the Tribunal did consider[22], the explanations that the Applicant gave for the disparity in her various accounts in both the written and oral evidence the account that she had given to the Tribunal.

   [22] CB 83, paragraph 22 and 23.

2. The four inconsistencies noted at paragraphs 18 to 21 of the Tribunal Decision (paraphrased above), taken in conjunction with Applicant’s delay in making the protection visa application, and the findings of the Tribunal that the Applicant’s evidence was in some respects vague or unconvincing, were plainly matters which would reasonably entitle the Tribunal to arrive at the conclusion that it did.

3. The Tribunal was not obliged to accept the Applicant’s explanations including her assertion that she was unaware of the apparent embellishment of her claims by whoever it was she said filled out her original application.  This is all the more so in circumstances where the Tribunal specifically recorded in paragraph 22:

   The Tribunal also found the applicant’s evidence in the hearing, when these concerns were put to her, that she had in fact read what was included in her application form a month after lodging it and realised then that this person had exaggerated her claims, concerning given her continued reliance on these claims despite them allegedly being an embellishment.

4. Given that the Applicant did not at any stage resile from those allegedly embellished assertions until the Tribunal hearing itself, the Tribunal’s ultimate conclusion that the Applicant was not to be believed is not in any sense one that suggests that the Tribunal properly failed to engage with its task of giving the Applicant a hearing and properly considering her claims.

Ground 3

1. The third ground of  the Application is stated to be as follows:

   The Tribunal failed to follow the guidelines provided in Part 10 of PAM3 ‘Refugee and Humanitarian – Asylum Claims – Assessing Credibility’) in considering the delay in claiming refugee status.

PARTICULAR

a.The guidelines required the Tribunal to ‘ensure they thoroughly explore the reasons for the delay with the asylum seeker at interview’ and suggested that one of the reasons for an asylum seeker to delay seeking asylum included being unaware of their right to seek asylum.

1. The first matter to take into account is that the Tribunal[23] expressly referred to the fact that it had taken account of the policy guidelines in PAM3.  Reading the Tribunal Decision fairly and as a whole, there is no reason to suggest the Tribunal did not remain conscious of that obligation.  As the Minister’s submissions assert, it is not explained in the ground how the Tribunal failed to follow the PAM3 guidelines.  It is well established, as the Tribunal correctly observed, that delay in applying for a protection visa may in certain circumstances be a relevant consideration.  In this case, the Applicant has claimed to have left Malaysia precisely because of her protection concerns, but made no application for a substantial period after her arrival in Australia.  It is impossible to see that the Tribunal fell into error in making this finding and relying upon it.

   [23] CB 80, paragraph 22 and 23.

Ground 4

1. The fourth ground of  the Application is stated to be as follows:

   Further and in the alternative, the Tribunal failed to take into account relevant consideration in finding delay in claiming refugee status.

   PARTICULAR

   a.The Tribunal failed to take into account the probable cause of the delay including the applicant being unaware of her right to seek asylum.

2. The obvious objection to this ground is that the Tribunal did consider the Applicant’s assertion that she did not know anything about seeking protection until “some guy told her she could do so” but found it unconvincing.  The Tribunal had put the matter of the delay to the Applicant[24].  That was a finding of fact made by the Tribunal following a direct traversal of the matter with the Applicant at the hearing.  It was a finding plainly open to the Tribunal to make in these circumstances.

   [24] CB 83-84, paragraph 25.

Conclusion

1. None of the grounds of application have been made out and it follows that the application will be dismissed with costs.  The Minister has sought that costs be fixed in the sum of $5,800, being an amount less than that allowed for in the Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3, Division 1, Item 3 and an order for that sum will be made accordingly.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge C.E. Kirton QC.

Associate: 

Date: 20 November 2019

[5] CB 19.

[6] CB 20-21.

[13] CB 82, paragraph 15.