CCU18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 428
•14 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CCU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 428
File number: MLG 1102 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 14 May 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the standard of interpretation at the hearing denied the applicant a fair hearing – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal’s approach to the assessment of the applicant’s credibility gave rise to jurisdictional error – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AAA, 36, 424AA, 424A, 425, 425A, 476, 477 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 7 May 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J Mintz Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1102 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CCU18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
14 MAY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Malaysia who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 19 April 2018. The applicant seeks judicial review of the Tribunal decision, invoking the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The grounds in the applicant’s application allege that the Tribunal made a jurisdictional error because:
(a)the Tribunal made a decision without looking at the evidence;
(b)the interpreter did not do a good job at the hearing before the Tribunal and the Tribunal therefore did not understand what the applicant said; and
(c)the Tribunal denied the applicant procedural fairness.
For the reasons explained below, the applicant has not established that the Tribunal decision is affected by jurisdictional error and the application to the Court is therefore dismissed.
BACKGROUND
The applicant applied for a protection visa on 9 December 2016. In her visa application, the applicant claimed to fear harm from a loan shark because of a debt incurred by her ex-husband in her name.
The Minister’s delegate refused to grant the applicant a protection visa on 20 March 2017. The delegate found that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Migration Act, essentially because the delegate considered that the applicant would receive effective protection from the police and judiciary in Malaysia against any threats from illegal money lenders.
The applicant applied to the Tribunal for merits review of the delegate’s decision on 10 April 2017.
On 21 June 2017 the Tribunal invited the applicant to attend a hearing before it on 12 July 2017 to give evidence and present arguments.
The applicant emailed the Tribunal on 11 July 2017 requesting a postponement of the hearing scheduled the following day. The Tribunal considered the applicant’s request but declined to postpone the hearing.
The applicant appeared at the hearing before the Tribunal on 12 July 2017 with the assistance of a Malay interpreter. At the conclusion of the hearing, the applicant was given an opportunity to provide any further information to the Tribunal in writing by 21 July 2017.
The applicant emailed the Tribunal on 21 July 2017 providing a list of banks and attaching two untranslated police reports and an untranslated hospital report from Malaysia.
The Tribunal affirmed the delegate’s decision on 19 April 2018.
SUMMARY OF TRIBUNAL DECISION
The Tribunal identified that the issues for its consideration were whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.
The Tribunal generally found the applicant’s evidence to be vague, inconsistent, unsupported by documentary evidence that should have been readily available to her and improbable. The Tribunal found that the applicant was not a credible witness.
The Tribunal accepted that the applicant was married between 2008 and June 2012, and that she has a son from this relationship who was, at the time of the Tribunal hearing, living in Malaysia with the applicant’s family. The Tribunal referred to the two police reports and the hospital report submitted by the applicant following the hearing. Based on those reports, the Tribunal found that the applicant suffered domestic violence from her ex-husband on at least two occasions, and that he accessed and misused her money without her consent on at least one occasion. While the Tribunal found that the applicant was vague and evasive in her account of when she last lived with and had contact with her ex-husband, the Tribunal accepted that the applicant ceased contact with him after the incident detailed in the second police report in August 2015. The Tribunal noted that the applicant had not claimed to fear ongoing domestic violence from her ex-husband and the Tribunal found there was nothing in her evidence to indicate that there was a real risk that she would suffer domestic violence from her ex-husband should she return to Malaysia in the reasonably foreseeable future.
The Tribunal found the applicant’s evidence at the hearing that she had outstanding debts to five to seven banks to be vague and unconvincing and did not accept that the applicant owed the amount she claimed to owe to up to eight banks. The Tribunal considered that if the applicant owed money to banks, had made no repayments in the last five or six years, had been served letters of demand by debt collectors and had been sent letters by lawyers threatening that she would be declared bankrupt, she would have provided to the Tribunal or the Department some form of documentary evidence of this from the banks, their debt collectors, lawyers acting on behalf of the banks or from the Central Credit Reference Information System (CCRIS) maintained by the Central Bank of Malaysia.
The Tribunal found the applicant’s evidence in relation to her claim to have been harassed by a loan shark over a debt taken in her name by her ex-husband without her knowledge to be unconvincing. The Tribunal did not accept that the applicant sought assistance from a support agency in relation to harassment from a loan shark or that she sought or was denied police assistance in relation to harassment by a loan shark. The Tribunal also found that the applicant’s travel history and her ability to save money from her freelance work to fund her travel to Australia in November 2016 were inconsistent with her claims to be destitute and unable to work due to harassment from loan sharks and other creditors.
The Tribunal found the applicant’s account of her making repayments to loan sharks to be implausible. The Tribunal did not accept that the applicant would agree to pay a loan shark a sum per month as repayment for a loan that she did not take out, in circumstances where the applicant did not know the loan amount and had no idea when, if ever, she would have repaid the loan. The Tribunal also did not accept that, if the applicant faced such circumstances, she could not have sought and obtained advice and assistance from a relevant support service and/or the police. The Tribunal considered that the applicant concocted this claim and therefore found that she was not making repayments to a loan shark.
Taking into account country information and its finding that the applicant never sought assistance from the Malaysian police or any organisations in Malaysia that provide advice, support and assistance to people being harassed or threatened by loan sharks, the Tribunal did not accept the applicant’s claim that the Malaysian authorities could not help her.
The Tribunal found the applicant’s claims to have been harassed by friends and associates of her ex-husband in relation to money he had borrowed from them in the past to be unconvincing and did not accept that the applicant had paid or would in the future pay money to people who claimed to have lent money to her ex-husband.
Having considered the applicant’s claims individually and cumulatively, the Tribunal did not accept that:
(a)there was a real chance that the applicant would suffer persecution involving serious harm from her ex-husband, debt collectors, loan sharks and/or their associates, or friends and/or associates of her ex-husband who lent money to her ex-husband; or
(b)there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk that she would suffer significant harm from her ex-husband, debt collectors, loan sharks and/or their associates, friends and/or associates of her ex-husband who lent money to her ex-husband, or anyone else.
The Tribunal therefore was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed her judicial review application on 26 April 2018 and the application was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant relies on a sole ground of application which asserts various errors by the Tribunal. The applicant’s ground reads as follows (reproduced without alteration):
THE TRIBUNAL MAKE DECISION ON 19/4/2018 WITHOUT LOOKING THE EVIDANCE SAME LIKE WHEN APPLICANT IN ORAL INTERVIEW, TRIBUNAL TOTALLY LIKE NOT UNDERSTAND WHAT I FEEL LIKE AND THE INTERPRETOR NOT GOOD TRANLATER BECAUSE WHEN I EXPLAIN TO TRIBUNAL THE INTERPRETOR DID NOT DO VERY WELL IN RIGHT DIALECT.
I HAVE BEEN DENIED FAIR PROCEDURE AND JURISDICTIONAL ERROR HAS BEEN MADE BY AAT AND I SHOULD BE GIVEN CHANCE TO PRESENT MY MATTER AS I HAVE GENUINE FEAR FOR MY LIFE IN MALAYSIA AND WOULD LIKE TO SEEK PROTECTION. I AM GENIUNE APPLICANT FOR REFUGEE VISA AND REFUSING TO ACCEPT MY APPLICATION WILL SERIOUS CONSEQUENCES FOR ME.
I WOULD LIKE TO ASK FCC TO ACCEPT MY APPLICATION AND LET ME CONTINUE THIS MATTER AND GIVE ME CHANCE TO ACCEPT THIS MATTER.
The evidence before the Court comprises:
(a)the court book filed by the Minister on 2 July 2019;
(b)an affidavit filed by the applicant on 26 April 2018, which annexes a copy of the Tribunal decision; and
(c)an affidavit filed by the applicant on 3 June 2019, which annexes a hospital report and police reports that the applicant provided to the Tribunal.
Both parties filed written submissions ahead of the hearing, albeit the applicant’s submissions were filed late and therefore the Minister did not have an opportunity to respond in writing to the applicant’s submissions.
CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if she establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was recently explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The ground in the applicant’s application
The ground as set out in the applicant’s application can be understood as asserting three types of jurisdictional error, namely, that:
(a)the Tribunal made a decision without looking at the evidence, which I treat as an assertion that the Tribunal failed to consider relevant evidence;
(b)the interpreter did not do a good job at the hearing, and did not speak the right dialect well, and therefore the Tribunal did not understand what the applicant was saying; and
(c)the applicant was denied procedural fairness.
There were no particulars in the application to explain these alleged errors, but the applicant was afforded an opportunity to provide particulars at the hearing.
To the extent that the ground in the application refers to the applicant’s subjective fear of harm and her belief that she is a genuine refugee, it invites the Court to engage in merits review of the Tribunal decision and does not assert or establish any jurisdictional error in the Tribunal decision. Likewise, the applicant’s request that the Court accept her application and let her continue this matter does not assert or establish any jurisdictional error in the Tribunal decision. I therefore do not address these matters further in this judgment.
Allegation that the Tribunal failed to consider relevant evidence
A failure to consider critical evidence in assessing an applicant’s claims for protection can amount to jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111]. However, the mere fact that a particular piece of evidence is not expressly referred to in a decision does not necessarily mean that it was not considered by the Tribunal: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46].
In the present case, the applicant did not identify in her application or in her written submissions the evidence that she believes the Tribunal did not consider. The applicant was given an opportunity at the hearing to identify in her oral submissions the information that she says was before the Tribunal and that she believes the Tribunal failed to consider. The applicant submitted that the Tribunal failed to consider the hospital and police reports.
The evidence in the court book shows that the applicant provided a hospital report and some police reports to the Tribunal after the Tribunal hearing. The reports are all in a language other than English and were not accompanied by any translation.
I accept Counsel for the Minister’s submission that the Tribunal appears to have somehow understood the content of the reports and addressed the reports at [35]-[36] of its reasons, where it said:
35.On 21 July 2017 (following the hearing on 12 July 2017), the applicant submitted two police reports and a hospital report. The police reports are regarding incidents on 13 January 2014 where the applicant states she was strangled and hit by her husband following an argument about her husband having claimed to have taken money from her bank account to pay an instalment on a car loan, which her bank subsequently advised her was in arrears; and 4 August 2015, where she states she went to see her husband at an apartment … to scold him about where he had been and where the money is that he cheated from her. This report indicates that she and her husband had not lived together since May 2014. The report further states that after she scolded her husband he tried to cut her with a large knife but she evaded it and he then choked her and swung the knife at her but she avoided it, ran away and did not suffer any injuries. The hospital report is dated 14 January 2014 and relates to the first police report. It indicates that the applicant was referred to the hospital by police where she presented with a ‘soft tissue injury’.
36.Based on the police reports the Tribunal finds that the applicant lived with her ex-husband until May 2014 (nearly two years after the ‘divorce’), and suffered domestic violence from her ex-husband on at least two occasions. The Tribunal also finds that the applicant was still in contact with her ex-husband until 4 August 2015 (the date of the incident reported in the second police report). The Tribunal notes that this was only 15 months before the applicant departed Malaysia and less than two years before the hearing. While the Tribunal finds that the applicant has been vague and evasive in her account of when she last lived with and had contact with her ex-husband, the Tribunal accepts that the applicant ceased contact with her ex-husband after the incident detailed in the second police report of 4 August 2015. The Tribunal accepts that the applicant was a victim of domestic violence from her ex-husband up to that point and that her ex-husband accessed and misused her money on at least one occasion without her consent. The applicant has indicated, however, that she no longer has contact with her ex-husband, has not claimed to fear ongoing domestic violence from her ex-husband, and the Tribunal notes that the police report of 4 August 2015 indicates that the applicant sought out her ex-husband at his residence… The Tribunal finds there is nothing in her evidence to indicate or suggest that there is a real risk that she would suffer domestic violence from her ex-husband should she return to Malaysia in the reasonably foreseeable future.
These paragraphs show that the Tribunal considered the police and hospital reports and accepted, based on the information in the reports, that the applicant had, in the past, been the victim of domestic violence by her ex-husband. The applicant’s assertion that the Tribunal did not consider the reports is not established.
At the hearing, I raised questions as to whether the applicant had provided an English translation of the reports to the Tribunal. She acknowledged that she did not provide a translation of the reports to the Tribunal, but provided a translation based on Google translate when providing the reports to the Court. In her reply submissions, she questioned how the Tribunal came to understand the content of the reports. It is not clear whether the applicant is asserting any jurisdictional error based on the Tribunal’s interpretation of the reports, but none is apparent. There is no translation, by a qualified interpreter or translator, of the reports provided to the Court, although the applicant has provided in her affidavit a brief description of the reports. The applicant has not asserted that the Tribunal’s interpretation of the reports is incorrect in any way and, while the Tribunal’s summary of the reports is more detailed than that provided to the Court by the applicant, it is not inconsistent with the applicant’s summary.
I otherwise accept the Minister’s submission that the Tribunal considered all of the evidence provided by the applicant in this case, which consisted of the information she provided in and with her visa application, the oral evidence she gave at the hearing before the Tribunal, and the documents she submitted to the Tribunal after the hearing. The Tribunal summarised all of this evidence in its reasons for decision and considered the evidence in assessing whether the applicant met the criteria for the grant of a protection visa.
I do not accept that the Tribunal made a jurisdictional error by failing to consider all relevant evidence.
Quality of interpretation at the Tribunal hearing
Poor quality interpretation can, in some circumstances, amount to a denial of procedural fairness under s 425 of the Migration Act: see Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [17], [20], [29], [38], [41]; BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508 (BZAID) at [52]. However, not all errors in interpretation will amount to jurisdictional error and a summary of the principles relating to the standard of interpretation required by the Tribunal is set out in BZAID at [52].
In the present case, the applicant in her application made reference to her belief that the quality of the interpretation at the Tribunal hearing was poor, without providing any details. There is no evidence before the Court to show that there were any interpretation errors at the Tribunal hearing. The Minister annexed to his written submissions a copy of an email sent to the applicant on 15 March 2024 alerting the applicant to the absence of evidence to support her allegation of interpretation error, attaching an audio recording of the Tribunal hearing and providing a link to the websites of three organisations that could prepare a transcript for the applicant should she wish to place one in evidence before the Court. The applicant did not file any evidence following receipt of this email. As I explained to the applicant at the hearing, in the absence of evidence I cannot find that there were any interpretation errors at the Tribunal hearing.
In any event, the applicant was afforded an opportunity at the hearing before the Court to explain her ground of application. The applicant did not submit that the interpreter interpreted any words incorrectly. Rather, the applicant submitted that the interpreter relayed what she said according to his own opinion and she could not say everything she wanted to say because of the expression on the interpreter’s face. In her reply submissions, the applicant submitted that there was no specific sentence to show that the interpreter did not do his job correctly, but she was not in a comfortable position because the interpreter had an expression on his face that caused the applicant to think that she should stop talking.
These allegations do not amount to jurisdictional error. There is no evidence or suggestion that the applicant expressed any concern to the Tribunal about the interpreter’s facial expressions during the course of the hearing and the applicant did not identify in her submissions to this Court any words or evidence that the interpreter did not accurately interpret. Rather, the applicant’s submissions suggest that she chose to curtail her evidence because of her subjective interpretation of the interpreter’s facial expressions. The applicant has not established that she was denied procedural fairness under s 425 of the Migration Act.
No jurisdictional error is established based on the applicant’s assertion of poor quality interpretation at the Tribunal hearing.
The assertion that the applicant was denied procedural fairness
The applicant’s ground asserts that she was denied procedural fairness but, again, does not provide any particulars. At the hearing, when asked why she believes the Tribunal denied her procedural fairness, the applicant submitted that she could not get evidence regarding her claims relating to loan sharks and when she was still with her ex-husband. She saw a loan shark card but did not grab it. The applicant submitted that she now has proof of what her ex-husband did, such as the police report of him scamming and borrowing money.
The applicant’s submission in relation to this issue does not establish jurisdictional error. As discussed above, the Tribunal had regard to the evidence that was before it. The onus was on the applicant to provide sufficient particulars of her claim to be a person to whom Australia owes protection obligations and sufficient evidence to establish the claim: s 5AAA of the Migration Act. The fact that the applicant now believes she has obtained relevant evidence, which she did not adduce before the Tribunal, does not mean that the Tribunal denied her procedural fairness.
I accept the Minister’s submission that the Tribunal complied with its procedural fairness obligations in Division 4 of Part 7 of the Migration Act. The Tribunal invited the applicant to attend a hearing and the notice of the invitation complied with the requirements of s 425A of the Migration Act. There was no information before the Tribunal that the Tribunal was required to invite the applicant to comment on in accordance with the procedures set out in ss 424AA or 424A of the Migration Act and there is no suggestion that the applicant was not aware of the dispositive issues in the review.
The Tribunal’s refusal of the applicant’s request for an adjournment, made the day prior to the hearing, does not give rise to a denial of procedural fairness and was not unreasonable. The Tribunal sent a letter to the applicant, via email, advising her that the adjournment request was refused and, in that letter, said:
You should tell the Presiding Member at the hearing tomorrow about the documents you are waiting on and how they are relevant to your claims, noting that you did not indicate in your application, submitted over seven months ago, or when you submitted the review application in April 2017, that you were awaiting any documents.
In the absence of a transcript of the Tribunal hearing, I cannot make findings as to any discussion about the documents at the Tribunal hearing. However, the Tribunal’s reasons for refusing the adjournment were reasonably open to it. Further, the Tribunal gave the applicant an opportunity to provide additional documents after the hearing and she availed herself of this opportunity. This shows that the Tribunal’s refusal to grant an adjournment does not appear to have prevented the applicant from providing additional documents to the Tribunal.
The applicant has not established that the Tribunal denied her procedural fairness.
The matters raised in the applicant’s written submissions
In addition to setting out some background matters, the applicant in her written submissions:
(a)made comments that might be seen as raising different or additional grounds to the ground in her application; and
(b)raised a new claim for protection based on a new relationship she has formed while in Australia and provided links to websites that were not before the Tribunal.
I first address the matters that might be seen as raising additional grounds of application. The applicant said at [11]-[14] of her submissions:
11.Tribunal had considered the matter and question the credibility of the evidence provided as I lacked supporting documents as it was my words against the AAT and the DoHA in the past.
12.I am certain that number of people from Malaysia applied for the protection visa based on the same claim and not everyone can be bogus or untrue, that was one thing AAT should have given regard to as well, when deciding on my application.
13.In the AAT’s decision Para 25, the tribunal mentions that if my accounts are considered but the information from the Malaysian authorities proves otherwise, however, I would like to mention that what Govt. would acknowledge that they have issues with public safety when they are in power. The Malaysian govt. has failed to protect their citizens and that’s the obvious reason hundreds of people moving out and making protection visa application in Australia and other countries.
14.In the para 29, The Tribunal generally found that my evidence to be vague, inconsistent, unsupported by documentary evidence. However, I wish to advice the FCC, that when I left Malaysia with fear for my life and did not think of collection documents to apply for Protection visa application. I wish to bring into the FCC’s consideration who thinks of taking documents along when your life is in danger.
In these paragraphs, the applicant challenges the adverse credibility findings that the Tribunal made against her. The specific paragraphs of the Tribunal decision that the applicant referred to are [25] and [29], where the Tribunal said:
25.The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.
…
29.The Tribunal generally found the applicant’s evidence to be vague, inconsistent, unsupported by documentary evidence that should be readily available to her, and improbable. For these reasons and the reasons detailed below the Tribunal found that the applicant is not a credible witness.
I do not consider that the Tribunal’s approach to the applicant’s credibility in this matter is affected by jurisdictional error. The Tribunal was not required to uncritically accept the applicant’s evidence and did not need to have rebutting evidence before rejecting any of her claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451 (Beaumont J); Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at 348 (Heerey J); CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [65].
I accept the submission advanced by Counsel for the Minister to the effect that the role of the Tribunal was to assess the applicant’s claims and any reference to claims made by other Malaysian nationals is immaterial to that task. The references to other Malaysian nationals and their protection claims do not establish jurisdictional error.
I also accept the submission advanced by Counsel for the Minister that the Tribunal’s assessment of the applicant’s evidence as vague, inconsistent and unsupported by documentary evidence was open to it on the evidence before it. The Tribunal accepted the claims of the applicant that were supported by documentary evidence, such as her claim to have been the past victim of domestic violence by her ex-husband. However, the Tribunal did not accept many of the applicant’s other claims. The Tribunal in its reasons identified a number of examples of inconsistencies in the applicant’s evidence over time, and of evidence of the applicant that it considered to be implausible taking into account country information. The applicant did not provide any documentary evidence to support some aspects of her claims in relation to which it was reasonable for the Tribunal to expect that she would have been able to provide documentary evidence, such as her claim to owe a large sum of money to several banks. It was open to the Tribunal, acting reasonably, to identify those concerns with the applicant’s evidence and place weight on those concerns in making adverse credibility findings against the applicant.
In considering the applicant’s claims for protection, it was open to the Tribunal to have regard to country information and no error arises from the Tribunal considering country information about the laws relating to illegal money lenders in Malaysia and the assistance available to people who are affected by illegal money lenders.
The applicant also said at [18] of her submissions:
I understand that AAT’s decision was based on the lack of supporting documents along with the information available from the Malaysian Government. However, fear deal of information was provided to the AAT. AAT finding that I may not suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Malaysia based on the loan shark is absolutely futile and lacks consideration of what is actually happening in Malaysia.
To the extent that the paragraph refers to the Tribunal’s observations about the lack of documentary evidence, it does not establish jurisdictional error for the reasons addressed at [55] above. To the extent that [18] of the applicant’s submissions might be interpreted as an assertion that the Tribunal did not have regard to the information before it, as discussed at [31]-[38] above, the Court is satisfied that the Tribunal considered all of the evidence before it.
Paragraph 18 of the applicant’s submissions might also be interpreted as an assertion that the Tribunal made a finding that was illogical or irrational. I understand the applicant to be referring to the Tribunal’s finding that she would not face harm from loan sharks, which was, in part, based on country information considered by the Tribunal. This issue was addressed at [42]-[44] of the Tribunal’s reasons, where the Tribunal said (footnotes omitted):
42.The Tribunal also found the applicant’s evidence in relation to her claim to have been harassed by a loan shark in relation to a debt taken in her name by her ex-husband without her knowledge to be unconvincing. In her application she stated that she had been chased by a loan shark almost every hour of every day and that they came to her house and workplace making noise and trouble. At the hearing the applicant commented that the worst thing that happened to her was that a person from the loan sharks came to her house and told her that her husband took a loan in her name. She said they scared her and made her ‘feel down’.
43.The Tribunal discussed with the applicant country information that indicates that there are laws in Malaysia (section 5(2) of the Moneylenders Act 1951) that make it an offence to operate as an unauthorised money lender (an ‘Along’ or a loan shark); that there are a number of support agencies that offer advice and assistance to people being harassed or threatened by loan sharks (the Malaysian Chinese Association (MCA), the Kuala Lumpur Consumer Safety Association and the Muslim Consumers Association of Malaysia (PPIM); that there are many press reports regarding ongoing police activities targeting loan sharks (Operation Vulture); and advice from [the Department of Foreign Affairs and Trade] indicates that overall, the Royal Malaysian Police (RMP) is considered by credible local and international sources to be a professional and effective police force, and that the majority of cases in Malaysian civil courts (which hear the majority of Malaysia’s criminal, civil and family law matters) are processed in accordance with the rule of law and legal procedure.
44.The applicant responded that the media reports do not reflect the reality. She said she sought help from several foundations but got no reply from them. When the Tribunal asked the applicant who she sought help from, she said she could not remember. She commented that the first time she asked for help she was rejected so felt very sad. She added that she went go to the National Zakat Centre (a Muslim charity) to seek help and brought along all the evidence from the bank but got no assistance. When queried regarding what she sought from them she said she was asking for a bit of money to help her out as she could no longer work. The Tribunal put to the applicant that the country information seems to make pretty clear that there are support services in place to assist people who are victims of loan sharks and that it was hard to see that someone in the circumstances she claimed to have been in, who had not borrowed from a loan shark herself but was the subject of fraud by her ex-husband, would not be offered support. The applicant responded indicating that she did not have a card to state that she owed money to a loan shark and commented that she remembered that previously when they borrowed from a loan shark there was a card given under her name. She said she no longer has that and there is no proof of anything, adding that when she went to the police regarding her husband she did not get help so she thought it was hopeless going to the police. The Tribunal found the applicant’s evidence unconvincing, noting that she was claiming that she was being harassed to the point that she could not work and that it is clear that the support organisations mentioned above offer assistance to victims of threats and harassment by loan sharks (including in the case of PPIM negotiating with moneylenders on behalf of borrowers repayment of debts at a government approved interest rate). The Tribunal does not accept that the applicant ever sought assistance from a support agency in relation to harassment from a loan shark or that she ever sought and was denied police assistance in relation to harassment by a loan shark.
It was open to the Tribunal, acting reasonably, to have regard to the country information and to prefer the country information to the applicant’s evidence. There is a logical and rational connection between the evidence that was before the Tribunal and the finding made by the Tribunal: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135] (Crennan and Bell JJ). There is nothing illogical or irrational in the Tribunal’s finding.
The applicant’s written submissions also raise a new claim based on a relationship she has formed while living in Australia and refer to information accessible from websites referred to in the submission. This appears to be information that was not before the Tribunal and the information about the applicant’s new relationship reflects a change in the applicant’s circumstances since the Tribunal decision. This does not give rise to jurisdictional error in the Tribunal decision. As I explained to the applicant at the hearing, the assessment of whether there is jurisdictional error in the Tribunal decision must be based on the circumstances that existed at the time of the Tribunal decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]; Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [77] (Mortimer J).
Nothing in the applicant’s written submissions establishes jurisdictional error in the Tribunal decision.
CONCLUSION
The applicant has not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review must therefore be dismissed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 14 May 2024
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