CLH17 v Minister for Immigration

[2018] FCCA 3744

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLH17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3744

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424AA

Applicant: CLH17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1194 of 2017

Judgment of: Judge Riethmuller

Hearing date: 20 September 2018

Date of Last Submission: 20 September 2018

Delivered at: Melbourne

Delivered on: 17 December 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1194 of 2017

CLH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 10 May 2017 which affirmed the decision of a delegate to the Minister not to grant the applicant a protection visa.

2. The applicant is a citizen from Malaysia.  She first arrived in Australia on 7 April 2014 on an Electronic Travel Authority.  The applicant applied for a protection visa on 19 December 2014.  Her husband, not listed on that application, similarly applied for a protection visa.

3. On 5 August 2015, the delegate refused to grant a protection visa on the basis that the applicant’s claims were ‘vague and brief and the delegate found them to lack credibility’: see [2] of the Tribunal’s decision’. 

4. The applicant was invited to attend a hearing before the Tribunal on

   
   

   16 June 2016.  On 10 May 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

The applicant’s claims

1. The Tribunal summarised the applicant’s claims (at [15]) of the decision as follows:

   ·   She left her country “according to her husband” because her husband was involved in a human rights organisation called… in 2010 and it fights for election rights in Malaysia. A call was received from an “unknown political” and threats to killing were made to her husband and family. A police report was made but no action was taken. They fear government supporters who may target them and their children/family.

   ·   She claims they are not able to obtain security; they are from a “normal, poor family”.

   ·   She claims hers and her husband’s name has been black listed and she will face problems getting a job, mental torture, killing, blackmail and other problems.

   ·   She claims it is a political problem and they need protection.

The Tribunal’s findings

1. At the Tribunal hearing, the applicant sought to rely on additional material (identified at [20] of the Tribunal’s decision). The Tribunal had regard to that material and considered that the material did ‘not relate specifically to the applicant’s claims and no explanation to their relevance was provided by the applicant and as such, I have given no weight in these findings’: see [62].

2. Before the Tribunal, the applicant claimed she came to Australia to run away from the loan shark to whom she owed ‘RM10,000’: see at [27]. In respect of harm, the applicant said that the loan shark ‘shook the door of her house’ and ‘threw red paid in front of the house’: see [31]. The applicant further claimed ‘that her car was smashed’: see [32].

3. The applicant was asked about her husband’s political involvement.  The Tribunal recounts (at [38]):

   38. … She said that people make trouble at her husband’s work place and her husband lost his job. She said that the … rallies he was involved in are against the government. She said that some people would come into the restaurant and eat and not pay. These people were against her husband.

4. The Tribunal asked the applicant ‘about being blacklisted and why her husband could not find another job’, to which the applicant said it was because ‘he went against the law”: see [40]. In respect to future employment, the applicant said ‘it will be hard to find a different job in a different location’ (at [42]) and that ‘she will struggle to pay the children’s education’: see [43].

5. The Tribunal asked about the applicant’s fears in respect to the lender” see discussion at [44] to [52] of the Tribunal’s findings. The applicant claimed that she borrowed money from him (at [46]) and that her husband is a guarantor for a friend who has taken out a loan with him. The applicant said she ‘has no idea how much money is outstanding’ on her loan: see [47].

6. At [51], the Tribunal summarised:

   51. The Tribunal explained its concerns pertaining to the plausibility of the applicants claims [in respect of the lender].  For example, the Tribunal stated that it finds it implausible that her husband would accept being a guarantor when they already had financial problems and her husband was against her using [the lender] for her business. She said that [R] had helped her husband before and maybe there was a sense of owing him.

7. Further, (at [52]):

   52… The Tribunal explained that it had limited detail about why she might face harm.  She said that a friend who lived in her old building told her [E] had been killed by the [the lender].  The Tribunal asked how she knew [the lender] killed him.  She said the police were involved and there would be an investigation.  The applicant stated that her friend is staying in the same place.  She said that her friend said that he was killed but she just heard.  In Malaysia things are different and she does not know what happened. She confirmed there was no evidence to prove this. She stated that she can get it from her friend.

8. The Tribunal put information to the applicant, obtained under s.424AA of the Migration Act 1958.  That information is provided (at [55] to [57] of the Tribunal’s decision) as follows:

   55. The applicant’s husband told the Tribunal that he borrowed money in order to open the shop. He confirmed he borrowed RM 10,000 from the [the lender] and the terms for the loan were monthly repayments of RM 5000 at 10% interest. He confirmed that he was the one who would go to [the lender’s] office and make the repayments. He said that the name of [the lender] was [Mr K] and that he found him through an Ad on a billboard. However the applicant stated that she was introduced to [the lender] through her friend [E] and that she was not aware of his name or where his office was located or the terms of the loan because he would come to the shop every day and she would pay him RM250.

   56. In regards to the second loan in which the applicant’s husband was the guarantor, the applicant’s husband claimed he knew [R] because he worked with him however the applicant said they were school friends.

   57. In regards to relocating the children to Sabah for safety, the applicant’s husband said that the applicant took the children to Sabah and not him. He stayed with a friend and then went to live with his brother and that this occurred at the end of 2012 and early 2013. The applicant stated that they moved the children by the end of 2013 and that she and her husband both went to Borneo with the children.

9. The applicant provided a written response to the information which is summarised at [59] of the Tribunal’s decision. Essentially, the applicant claimed that the parties did not ‘communicate or she had concerns about her husband and that he might lie’: see [68].

10. The Tribunal considered the applicant’s claims (at [66]) concluding that:

    66. Given the lack of detail provided by the applicant to support her claims and the fact that the applicant raised these claims at hearing and not in her initial application and the credibility concerns already raised, the Tribunal is further concerned about the genuineness of the claims. The Tribunal is unable to be satisfied that the applicant borrowed money from a loan shark or that her husband was a guarantor for a loan with a loan shark. It is unable to be satisfied that the loan shark shook the door of her house shouted “open the door” and the neighbours saw but they left after one hour or that they threw red paint in front of the house and that she received letters saying they will do worse and that the police came but could not take action or that the glass window in her car was smashed.

11. Ultimately (at [68]) the Tribunal concluded:

    68. The Tribunal has considered the applicant’s response but does not accept the explanations for the contradictions before it. The applicant clearly articulated at hearing and in her application that her claims rest with those of her husband and at no point did she state they did not communicate or she had concerns about her husband and that he might lie. She was able to articulate a story not dissimilar to that which her husband gave accept when asked questions of detail. There is no reason why she could not have told the Tribunal at hearing about her marriage difficulties but she provided no evidence to support her claim that her husband’s mental state may be affected and impact of his ability to give evidence. Furthermore the Tribunal noted that the evidence that applicant’s husband gave the Tribunal was coherent and unaffected. The Tribunal does not accept that applicant’s reasons for the contradictory evidence and finds that the applicant is not a credible witness and her claims are not genuine. Given this finding, the Tribunal does not accept any of the claims made by the applicant in her application or at hearing. The Tribunal does not accept that the applicant’s husband attended … rallies which led to him being targeted and black banned, sacked and unable to find work and that he subsequently suffered mental health issues. The Tribunal does not accept that the applicant and her husband borrowed money from [the lender] or that her husband was a guarantor on a loan given by [the lender]. As such the Tribunal does not accept that the applicant faces any harm from [the lender] or ever did face harm such as harassment in their shop, banging on their doors, threatening letters, red paint thrown at their house or their car window damaged.

12. Based on this conclusion, the Tribunal affirmed the decision not to grant the applicant a protection visa: see [74].

Grounds of application

1. Despite orders made 22 January 2018 for the filing of further court material, the applicant relies on her application filed 6 June 2017.

2. The applicant relies on the following nine grounds of review:

   1. The Tribunal erred in paragraph 43 of the Decision Record in that the issue was not the inability to find jobs, but that due to the significant and very real threat of harm the applicant would not be able secure or keep any meaningful employment.

   2. The Tribunal erred in paragraph 48 and 51 of the Decision Record in that it was reasonable to infer as a matter of evidence that a husband would still guarantee a loan despite being in financial stress as the loan was for the benefit of the wife (the Applicant).

   3. The Tribunal acted unfairly in refusing to consider the evidence of the loan shark "Ah Long". The Tribunal simply refused to turn their mind to the existence and plausible evidence of the loan shark.

   4. The Tribunal erred in failing to take into account the evidential content of the statement provided by the Applicant as set out in Paragraph 60 of the Decision Record.

   5. The Tribunal failed to take into account that the Applicant's evidence was consistent with that of her husband's merits review case no. [xxx].

   6. It was not open on the evidence for the Tribunal to make findings that the Applicant was not credible or that her claims were not credible at Paragraph 62-65 of the Decision Record. There was no contradictory evidence suggesting otherwise.

   7. The Tribunal erred in making a finding that the Applicant is not owed protection obligations by Australia.

   8. The Tribunal erred in not taking into account the Applicant's fear of being harmed if he was returned back to Malaysia.

   9. The Tribunal erred in not giving any weight or credit to the Applicant's evidence.

3. The applicant represented herself at the hearing before this Court. The applicant appeared to have no idea about the content of grounds 1 to 9 of her application. The reference to ‘he’ in ground 8 indicates that the grounds may have been copied from her husband’s application or elsewhere.

Argument put at hearing

1. At the hearing before me, the applicant put an argument that she was hoping for a visa to finish her studies as the economic situation in Malaysia was, from her perspective, bad.  This is not a basis for the grant of a protection visa. 

2. The applicant also argued that her and her husband were interviewed separately by the Tribunal and then asked about differences in their stories.  The applicant said she was waiting for a chance to tell her story, although it seems clear that that occurred before the Tribunal.

3. At Court Book p.109, it appears that the application was made to the Tribunal on 14 August 2015, however, the hearing did not take place until 16 June 2016, allowing the applicant ample time to prepare. The Tribunal recounts that it explained to the applicant the relevance of contradictory information and that she advised she would respond by email. Whilst the Tribunal gave her until 23 June 2016, the applicant did not respond until 28 June 2016. The Tribunal nonetheless considered the contents of that response, setting it out in considerable detail: see [58] and [59] of the decision.

4. As identified at [54] of the decision, the Tribunal put the information in the form required by s.424AA of the Act. The Tribunal then went on to consider in detail the responses in its reasoning process, saying:

   67. The Tribunal considered the response provided by the applicant regarding the information put to her under s 424AA of the Act. In summary, she attributed the contradictory information to her husband becoming victim of the economic situation in Malaysia and trying to run a business on her husband's salary every month. She claims that she borrowed money from family to keep the business running when her husband lost his job. She also said that her husband joined the “Walk of Democracy” … and his personality changed. She said he lost interest in his family and lied. She confirmed that [R], her husband's friend asked him to be a guarantor for a loan for RM100,000 and they would become business partners but [R] fled the country and with the financial stress her husband “lost his mind and went psycho (sic)”. The [lenders] came to their shop and she paid MR 250 every day. She said she had no idea who they were or where their office was. Her marriage began to break apart. Her siblings gave her money and they sought refuge in Australia. She had to follow her husband but they do not communicate. They remain together for their children and she also said her sister was diagnosed with breast cancer and she needs to support her medical costs. She claims her children are safe in North Borneo because loan sharks will not recognise her children. She said she has to work hard to earn money to support her children and she plans to bring them to Australia.

   68. The Tribunal has considered the applicant’s response but does not accept the explanations for the contradictions before it. The applicant clearly articulated at hearing and in her application that her claims rest with those of her husband and at no point did she state they did not communicate or she had concerns about her husband and that he might lie. She was able to articulate a story not dissimilar to that which her husband gave accept when asked questions of detail. There is no reason why she could not have told the Tribunal at hearing about her marriage difficulties but she provided no evidence to support her claim that her husband’s mental state may be affected and impact of his ability to give evidence. Furthermore the Tribunal noted that the evidence that applicant’s husband gave the Tribunal was coherent and unaffected. The Tribunal does not accept that applicant’s reasons for the contradictory evidence and finds that the applicant is not a credible witness and her claims are not genuine. Given this finding, the Tribunal does not accept any of the claims made by the applicant in her application or at hearing. The Tribunal does not accept that the applicant’s husband attended … rallies which led to him being targeted and black banned, sacked and unable to find work and that he subsequently suffered mental health issues. The Tribunal does not accept that the applicant and her husband borrowed money from [the lender] or that her husband was a guarantor on a loan given by [the lender]. As such the Tribunal does not accept that the applicant faces any harm from [the lender] or ever did face harm such as harassment in their shop, banging on their doors, threatening letters, red paint thrown at their house or their car window damaged.

5. In these circumstances, the applicant has not established a ground relating to reasonable opportunity to be heard, nor one that may flow from any alleged failure to comply with s.424AA.

6. Whilst these are the only grounds that the applicant pressed during oral argument, I nonetheless proceed to address briefly each of the grounds set out in her application.

Ground 1

1. The Tribunal considered the applicant’s claim to fear harm in relation to her husband’s inability to obtain employment as a result of his involvement in rallies, together with country information in this regard: see [38] to [43].  At paragraphs [64] and [68], the Tribunal rejected the claim that her husband had been blacklisted because of his involvement in rallies.  The Tribunal appears to have appropriately considered these matters and made findings against the applicant.  It is not open to the Court to engage in merits review.

Ground 2

1. In this ground, the applicant takes issue with the Tribunal’s assessment of the evidence before it.  Whilst reasonable minds may differ as to the assessment of evidence that was given, particularly with respect to a guarantee of a loan for a friend, it was certainly open to the Tribunal to make the findings that it did on the material before it.

Ground 3

1. This ground attempts merits review. The Tribunal did consider the applicant’s claims to fear harm from the lender and rejected these claims on the basis of credibility findings. The credibility findings were open to the Tribunal, given that:

   a)not all of the claims were made in the written application: see [63];

   b)there were inconsistencies between her and her husband’s evidence: see [54] to [59] and [67] to [68];

   c)the country information was not entirely consistent with her claims: see [64];

   d)the Tribunal’s assessment of the implausibility of her evidence: see [51]; and

   e)her inability to provide details with respect to her claims: see [65] to [66].

Ground 4

1. This ground refers to paragraph [60] of the decision and claims that the Tribunal failed to have regard to the evidence contained in that paragraph. That paragraph addresses country information. The information in that paragraph was put to the applicant at the hearing, and later dealt with in the reasons: see [64].

2. It is a matter for the Tribunal what weight it places upon country information.  It is clear from the reasons that the Tribunal had regard to the information and analysed it. 

3. I am not persuaded that this amounts to a ground for judicial review.

Ground 5

1. Ground 5 alleges that the applicant’s evidence was consistent with that of her husband. The Tribunal’s conclusion was to the opposite effect, that is, that the applicant’s evidence was inconsistent with her husband’s. This was put to the applicant pursuant to s.424AA, and appears to have been conceded by the applicant in her written response: see Court book p.308. The Tribunal considered the response and the evidence before it. There is no evidence by way of transcript to show that the Tribunal misconceived the evidence that was given orally.

1. I am not persuaded that this amounts to a ground for judicial review.

Ground 6

1. Ground 6 takes issue at a credibility finding.  There were numerous reasons that the Tribunal gave for finding that they did not accept the applicant’s credibility, as discussed above. 

2. I am not persuaded that this is a ground for judicial review.

Ground 7

1. Ground 7 appears to be a generalised ground complaining of error generally on the part of the Tribunal on the basis that it did not accept the applicant’s case.  It does not articulate a ground for judicial review.

Ground 8

1. Ground 8 appears to relate to the applicant’s husband.  Whether it properly relates to the applicant’s husband or the applicant, it is clear that the Tribunal had regard to the issues and made a determination that there was not a real risk of serious harm if the applicant returned to Malaysia.

Ground 9

1. Ground 9 simply challenges the credibility findings of the Tribunal which, for the reasons set out above, were open to the Tribunal.

Conclusions

1. As a result of the findings stated above, I must dismiss the current application considering not only upon the matters raised in the written grounds, but also the matters raised by the applicant at the oral hearing. 

2. It was agreed that costs should follow the event.  The Minister sought costs in the sum of $4,000.  This is far less than the scale fee. 

3. I find that the amount sought is reasonable and that the Minister should have his costs in that sum. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:

Date:  17 December 2018