BYL23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 745
•19 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYL23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 745
File number: SYG 1223 of 2023 Judgment of: JUDGE D HUMPHREYS Date of judgment: 19 August 2024 Catchwords: MIGRATION LAW – Administrative Appeals Tribunal – Protection visa – No jurisdictional error established – Application dismissed Legislation: Migration Act 1958 (Cth) ss 5J, 36, 477
Migration Regulations 1994 (Cth) sch 2
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Fox v Percy [2003] HCA 22
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 13 August 2024 Place: Parramatta Solicitor for the Applicant: Appearing in person Solicitor for the Respondents: Mr Gauci, Hunt & Hunt Lawyers ORDERS
SYG 1223 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYL23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
19 AUGUST 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s fixed in the sum of $5500.00
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).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS:
INTRODUCTION
The applicant is a citizen of Vietnam. The applicant arrived in Australia on 4 January 2016 as part of a one-week tour, and her visitor visa at the time expired on 4 April 2016. Whilst in Australia, the applicant divorced her husband who remained in China, and married an Australian citizen on 26 October 2019. That relationship has also ended.
On 30 May 2018, the applicant applied for a protection visa. A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the delegate”) refused to grant the protection visa on 16 August 2019.
The applicant lodged an application for merits review on 17 August 2019 with the Administrative Appeals Tribunal (“the Tribunal”). On 28 June 2023, the Tribunal affirmed the delegate’s decision not to grant the protection visa.
The applicant now seeks judicial review of the Tribunal’s decision in this Court. For the reasons set out below, the application must be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal set out at [9] to [13] of its decision, the relevant criteria for a protection visa as set out in s 36 of the Migration Act 1958 (Cth) (“the Act”) and Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).
The Tribunal directed itself to the mandatory considerations under Ministerial Direction No. 84 (“Direction 84”) and affirmed that it had taken account of the “Refugee Law Guidelines” and “Complementary Protection Guidelines” prepared by the Department of Home Affairs (“the Department”) and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.
At [18] to [21], the Tribunal set out the applicant’s claims for protection as made to the Department as follows:
18.[The applicant’s] original claims to the Department were brief and unsupported:
I LEFT VIETNAM BECAUSE … THERE ARE SOME PEOPLE … TRYING TO KILL ME
I MIGHT GET KILL [sic] WHEN I GET BACK TO VIETNAM
19.Prompted in the application form to say whether she might be able to relocate to avoid harm, [the applicant] said:
WHEREVER I GO THEY STILL CAN FIND ME.
20.Prompted to give details about the type of harm or mistreatment she feared, about the person or people who would be responsible for the harm or mistreatment, and about why they would harm or mistreat her, [the applicant] said:
I MIGHT GET KILL [sic]
21.Prompted to explain why state protection would be unavailable, [the applicant] said:
NO ONE CARE ABOUT MY SAFETYNESS [sic]
The Tribunal then proceeded to set out the evidence the applicant presented to the Tribunal at [24] to [63]. The Tribunal quoted the applicant’s substantive claims as were contained in the applicant’s covering submission at [26]:
[The applicant] is seeking protection in Australia, and not to return to her home country – Vietnam – owing to a well-founded fear of being persecuted on the basis of her membership of particular social groups:
•People who have borrowed money from loan sharks, pawnbrokers and/or gangsters
•Women who have been victims of domestic and family violence from their families
•Women who are at risk of domestic and family violence (DFV)
•Single and/or divorced women
The people [the applicant] fears harm from in Vietnam include:
•Her husband
•Her in laws (including mother in law, father in law and sister in law)
•People who work for her husband’s family in their illegal moneylending business
The harm she fears includes:
•Physical beatings
•Torture
•Cruel and inhuman, and degrading treatment or punishment
•Arbitrary deprivation of her life
[The applicant] maintains there is nowhere in Vietnam where she can go to be safe, and that the authorities of Vietnam are unwilling or unable to protect her, for reasons including her gender.
Additionally, [the applicant] claims she faces a real risk of being arbitrarily deprived of her life, torture, cruel and inhuman and degrading treatment and punishment if she is removed from Australia.
The Tribunal, in determining whether the applicant was entitled to protection in Australia, found it necessary to make the following findings of facts:
(a)The applicant used to live in a village with her husband, two children, mother-in-law and sister-in-law.
(b)The applicant is a person with little education, no qualified skills, no English communication skills when she arrived in Australia, and possible little to no English now.
(c)The applicant only had local participation in the Vietnamese economy via small scale family ventures. Her suggestion of being “taken on” by an insurance company to take advantage of a holiday abroad did not suggest to the Tribunal that the applicant worked in any meaningful capacity for such a company.
(d)The applicant’s claim of her fear of persecution on the basis of being a member of the particular social group “who have borrowed money from loan sharks, pawnbrokers and/or gangsters” did not accurately reflect the applicant’s claimed circumstances of not being able to expedite her debt. The Tribunal stated it would be more accurate to characterise this group as “People in Vietnam who have defaulted on loans from loan sharks, pawnbrokers and/or gangsters”.
(e)The Tribunal did not agree that the applicant was claiming fear of persecution for being a member of a particular social group characterised as “people who have borrowed money from loan sharks, pawnbrokers and/or gangsters”. The harm the applicant claimed to fear was individual harm from an individual lender and associates for reasons of something she, as an individual, had done/failed to do.
(f)The applicant’s claim of fearing persecution for reason of being a member of the particular social groups of “Women who have been victims of domestic and family violence from their families” and “Women who are at risk of domestic and family violence (DFV)” were cancelled out because each was defined by the harm purportedly feared.
(g)The last group which the applicant claimed to fear persecution for being a member, did not have a form of harm as its common characteristic “Single and/or divorced women” is not affected by the “is/does” issue. The applicant had told the Tribunal at the hearing that she was not worried about her status as a single or divorced woman.
(h)There is evidence that the applicant’s former husband consented to the divorce, meaning that the applicant had left the household and was allowed to leave it. The Tribunal made the following finding in relation to this point at [79]:
All of this makes it to characterise any future violence from [the applicant’s] ex-husband or members of his family as “domestic violence”, particularly since [the applicant] has emphasised that the violence with which she has been threatened is loan-related and in the nature of gang-related and loan shark behaviour, notwithstanding that there are family members allegedly involved.
(i)The Tribunal was not satisfied that the applicant’s claims have any nexus with s 5J(1)(a) of the Act.
(j)The Tribunal found that the applicant was not a reliable witness. In particular, considering the applicant’s migration history, experiences when first arriving in Australia, and its own observations. The Tribunal commented at [82] that “by her account she had an extraordinary run of a great deal of unalloyed good luck, during which she proceeded apparently without fear of anyone involved or any distrust towards them, notwithstanding she claimed to have lived for years surrounded by relatives who only ever exploited and beat her.” The Tribunal found that the culmination of the events described by the applicant, allowing for one or two being generally plausible on their own, was hard to believe, noting they all happened to the same person within mere weeks and months.
(k)It was far-fetched that the applicant was invited to work for an insurance company by a person working there and who told her it would be a good way to escape Vietnam as the company was taking a group holiday in half a year’s time. The Tribunal was of the view that the story was a “complete fantasy”. The Tribunal found that this did not sit with the applicant’s claim of trying to secretly escape family violence when she obtained her passport in May 2019. The Tribunal did not believe that the applicant worked for any insurance company nor that she had ever signed anything before signing her visitor visa application. The Tribunal did not believe the applicant’s account of how she obtained her visitor visa, and had doubts regarding her related claims, such as leaving Vietnam without her family and in-laws’ knowledge.
(l)The applicant’s timing and ease in departing Vietnam, her little input when obtaining a visitor visa, rapid access to accommodation, and illegal employment after arriving in Australia was not inconsistent with her having signed up for a fraudulent operation.
(m)The applicant divorced her husband in 2019. The Tribunal did not accept that the applicant announced to her husband that she wanted a divorce in January 2016, as she had told the Tribunal, that she only sought to divorce him to access permanent residency after being told of the “marriage option”.
(n)The applicant divorced her husband in order to marry in Australia to obtain permanent residence, and the divorce was pragmatic and resolved at least partially on an expectation that the applicant would support her children in Vietnam.
(o)The applicant’s claims that the money she sent back to her ex-husband to raise and educate their children was being used by her husband for purposes other than intended was unreliable.
(p)While prepared to accept that the applicant borrowed some money from her husband’s family, the Tribunal was not satisfied that she borrowed Ð300 million from a loan shark who was also her then-mother-in-law. The Tribunal found that the applicant had repaid all that she borrowed, that her later attempts to suggest that there were still an amount outstanding, and that the debt had ballooned out were both improvised revisions of her declaration of having paid off her debts. It was far more likely that if the applicant borrowed any money in Vietnam it was so that she could be brought to Australia.
(q)The Tribunal did not believe the applicant’s mother-in-law lent money at a usurious rate. It did not accept that any member of her ex-husband’s family, or any associate, has ever threatened to kill her.
(r)The claim that the applicant’s ex-husband’s sibling published a death threat on Facebook and it was taken down was a recent invention. The Tribunal did not accept that the sibling has been violent towards the applicant.
(s)In view of the Tribunal’s finding of the applicant being an unreliable witness, no weight was given to the letters from the applicant’s daughter or mother.
The Tribunal determined that:
93.I am not satisfied on the evidence before me that [the applicant] faces any harm in Vietnam from loan sharks or former family members/in-laws, or people she has described as being both, or associates of such people. I find that the loan claims in this application are false claims.
94.I am not satisfied on the evidence before me that [the applicant] faces a real chance of potentially significant, relevant harm in Vietnam for reasons of being a “single” or divorced woman.
95.I am not satisfied on the evidence before me that [the applicant] faces a real chance of suffering “domestic violence” in Vietnam in the reasonably foreseeable future.
The Tribunal did consider the implicit claims of whether the applicant would face re-prosecution for reasons of being a person convicted of a crime whilst abroad, however it was not satisfied that the applicant faces a real chance of being re-prosecuted.
Furthermore, the Tribunal was not satisfied that the applicant faced a real chance of being persecuted in Vietnam for having sought asylum abroad.
The Tribunal was not satisfied that the applicant faced a real chance of being persecuted in Vietnam for the reasons cited in s 5J(1)(a) of the Act and found that the applicant’s claimed fear of persecution was not well founded and that she is not a refugee. As such, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
In relation to the alternative criteria in s 36(2)(aa) of the Act, the Tribunal set out the principles behind the section at [102] to [106] and, in view of the “real risk” test imposing the same standard as the “real chance” test, the Tribunal found that the applicant’s claims can no more succeed as complementary protection claims. The Tribunal stated at [109]:
On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Vietnam, there is a real risk that [the applicant] will suffer significant harm as exhaustively defined under s.5(1) of the Act. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Accordingly, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
GROUNDS OF JUDICIAL REVIEW
The applicant filed for judicial review on 28 July 2023. In her Originating Application, the applicant sought an extension of time for filing her application for judicial review, however the date of filing was less than 35 days after the date of the decision being reviewed (being dated 28 June 2023). Accordingly, no extension of time is required.
The application for an extension of time is made on the following grounds:
1.Perform surgery
2.Cure depression
3.I want to stay in Australia
The grounds of the substantive application for judicial review, as contained in the Originating Application filed 28 July 2023, though contained under the heading “Final orders sought by applicant/s”, are as follows:
1.I am so scared if I have to go to back to Vietnam because I will be killed by my ex-in-law’s family.
2.I still owe a large amount of money to my ex-husband’s family, so I cannot go back because if I go back, they will find me to beat and kill
3.My family is very difficult, if I return, I will not have money to support my mother.
(errors in original)
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. She was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to her. The Court also ensured the applicant had access to a pen and paper so she could take notes during the course of the hearing should she so wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of her case. The applicant told the Court that what she said at the Tribunal hearing was true. She could not understand why the Tribunal did not believe her. She stated she would rather die than return to Vietnam.
When the applicant came to Australia she met her second husband. Within two years, he also became violent towards her. She stated she was seeking leniency to give her a second chance to restart everything.
At the conclusion of the respondent’s oral submissions, the applicant was asked if she wished to state anything in reply. She answered that she was just “a normal citizen and had no knowledge of the law”.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submitted that the grounds of review advanced by the applicant do not allege jurisdictional error nor constitute proper grounds of review. The first respondent contends that the grounds are an invitation to the Court to embark on impermissible merits review; (see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
CONSIDERATION OF THE GROUNDS OF REVIEW
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451].
It is for the applicant to satisfy the Tribunal Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
It is well established that the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62].
None of the matters raised by the applicant either in the grounds of judicial review or her oral submissions raise any assertion of jurisdictional error in the decision of the Tribunal. They simply repeat assertions given to the Tribunal as to the claims of the applicant as to why she fears harm upon return.
The Court agrees with the first respondent that the purported grounds of judicial review simply invite impermissible merits review which the Court cannot undertake.
The Court is satisfied that it was open to the Tribunal to come to the conclusion it did, based on the evidence before it, and for the reasons it gave. There is nothing illogical, irrational, or legally unreasonable in the Tribunal’s discussion of the applicant’s evidence or the conclusions it reached
As the applicant is unrepresented, the Court has perused the material before it, but is unable to detect any unarticulated jurisdictional error.
DETERMINATION
In these circumstances, given that no jurisdictional error has been alleged either in the Originating Application, or orally at the hearing, the application must be dismissed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 19 August 2024
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