CLP22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 813

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CLP22 v Minister For Immigration, Citizenship And Multicultural Affairs [2023] FedCFamC2G 813

File number(s):	BRG 294 of 2022
Judgment of:	JUDGE VASTA
Date of judgment:	15 June 2023
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth) Part 7 Division 4
Division:	Division 2 General Federal Law
Number of paragraphs:	64
Date of last submission/s:	15 June 2023
Date of hearing:	15 June 2023
Counsel for the Applicant:	The Applicant appearing on their own behalf with the assistance of an interpreter
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

BRG 294 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CLP22

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	15 JUNE 2023

THE COURT ORDERS THAT:

1.The application filed on 2 June 2022 be dismissed.

2.The Applicant pay the First Respondent’s costs of an incidental to the application fixed in the sum of $6,500.

3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

IT IS NOTED THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

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
(Ex Tempore)

JUDGE VASTA

1. On 28 April 2022, the Administrative Appeals Tribunal (“AAT”) affirmed a decision not to grant the applicant, CLP22, a protection visa.  On 2 June 2022, the applicant asked this Court to review that decision. 

2. The background to the matter is that the applicant is a citizen of Vietnam.  The applicant came to Australia on 3 December 2017 under a visitor visa.  The applicant made an application for a protection visa on 8 January 2018. It is that application that is the subject of today’s proceeding. 

3. The applicant’s application was refused by the delegate of the Minister on 29 March 2018.  The applicant asked the AAT to have another look at her matter on 18 April 2018.  However, it wasn’t until 29 March 2022 that the applicant was able to actually appear before the AAT, as it were, to plead her case. 

4. The applicant’s claim is that she borrowed money from relatives in Vietnam and is unable to repay that debt.  She says that she fears being beaten, injured or killed by her creditors.  The applicant said that she left Vietnam because of her inability to repay the debt.  She said that she has not received any help from authorities because her issues are personal economic ones. 

5. The AAT asked her to expand on those claims.  She said that, in January 2015, she started work at a local kindergarten, having graduated from an education course in early childhood education.

6. She said that one of her co-workers, a person I will call THL, became a friend of hers.  The applicant and THL started talking about opening their own family day care business.  THL estimated that they would need about 2.6 billion Vietnamese currency units to do so.  I note that this amount of money is equivalent to AU$150,000.  The arrangement was that both the applicant and THL would contribute half of that sum.

7. The applicant went to a cousin on her father’s side, a person I will call NTT.  The applicant knew NTT from family events, and also knew that she offered high interest loans.  The applicant said that, on 2 February 2015, she borrowed 1.3 billion Vietnamese currency units from NTT.  This was given to her in cash.  She gave this money to THL.  Three days later, THL disappeared, taking all the cash with her. 

8. When the applicant approached NTT to tell her what had happened, NTT became very aggressive.  NTT demanded the return of the money and, when the applicant couldn’t produce it, NTT went and hired a gangster.  The gangster threatened the applicant and threatened the applicant’s parents.  The applicant said that she could not go to the police, and this is why she fled Vietnam and came to Australia. 

9. The AAT asked the applicant if there was any written evidence of the loan.  The applicant said because the loan was in cash, there was no documentation that provided evidence of the loan.

10. The AAT asked what rate of interest was the loan accruing.  The applicant said that it was a monthly interest of 100,000 Vietnamese currency units.  The AAT asked whether the applicant was correct, suggesting that the interest might be a figure in the millions of Vietnamese currency units.  The applicant reiterated that it was 100,000 Vietnamese currency units.  The AAT said that this amounted to about $AU6 a month.

11. The AAT noted that this was an annual interest rate of less than 0.1 per cent.  The AAT noted that the applicant did not seek to correct her evidence. 

12. The AAT asked the applicant why she needed such a large sum of money to start the business.  The applicant said that it was a family day care which was going to be based in a small house and it would only have 10 children a day.  The applicant said that they would need to have secured a rental property, to buy equipment and to obtain local permits. 

13. The AAT noted that the expense that the applicant was undertaking equated to AU$15,000 per child.  The AAT asked the applicant how such an expense could possibly have been justified.  The applicant said that THL was the person who was across the expenses and that she had trusted THL that this was necessary expenditure.  The applicant could not explain the costs any further than that.

14. The AAT then asked the applicant about the threats that she had received.  The applicant spoke about a gangster who came into the family home, damaged their belongings and threatened to injure and kill her and her parents.  The applicant accepted that there was no supporting material for that claim. 

15. The AAT then asked if the cousin, NTT, had tried to recover the money from THL.  The applicant said no.  The applicant said that THL had run away to the city and could not be found. 

16. The AAT reminded the applicant that she had said that, if she tried to run away, NTT would have no trouble finding her.  Given that this is what the applicant was saying, the AAT asked why then would NTT have trouble finding THL.  The applicant said to the AAT that she did not know the answer to that question.

17. The AAT asked if there was any evidence from the applicant’s family to assist her.  The applicant said that there was no evidence from her family. 

18. The AAT asked why, given the interest payments were so modest, that NTT would go to the trouble and expense of hiring a gangster.  The applicant said that she did not know the answer to that question. 

19. The AAT asked why NTT should even be angry, given that the interest was so low.  The applicant said she did not know the answer to that question either. 

20. The sister of the applicant also gave some evidence before the AAT.  The sister said that she, the sister, had been in Australia for all of 2015 and 2016.  The AAT suggested to the sister that she, the sister, knew nothing about any loan arrangement.  The sister agreed with this suggestion.

21. The AAT said that they did not consider the applicant’s claims, or her evidence at the hearing, to be persuasive.  In particular, the AAT did not accept that the applicant borrowed the sum of 1.3 billion Vietnamese currency units from NTT or any other person.  The AAT said that they came to that conclusion because of three things.

22. Firstly, that there was no evidence, aside from what the applicant herself said, that any amount of money was advanced to her by any person.

23. Secondly, the applicant could not specify the use to which the money would be put, other than in general terms which were implausible.

24. The third reason is that the terms and conditions for the loan included an interest rate that was implausibly low and quite inconsistent with the actions of a loan shark.

25. The AAT did not accept that the applicant had a well-founded fear of harm at the hands of her cousin, NTT, or from anyone else associated with this.  There are five reasons for this conclusion.

26. Firstly, the AAT did not accept that there was any loan advanced at all.

27. Secondly, the explanation as to why there was not any recourse sought against THL was not plausible, especially considering the applicant’s evidence about the relentless nature of the recovery methods used by her cousin, NTT.

28. Thirdly, the minute value of any loan arrears makes it unlikely that the demands were made as the applicant claimed they were.  The very low value of any loan arrears made it unlikely that the demands were made in the manner that the applicant said they were made. 

29. Fourthly, the sister of the applicant lacked knowledge of the claims, in circumstances where the AAT expected that she would have extensive knowledge of them.

30. And lastly, the AAT said there was no evidence from any other members of the family of the applicant or any other person to support her claim. 

31. The AAT also had recourse to information from the Department of Foreign Affairs and Trade.  The information detailed what the situation was with regard to illegal money lenders and retaliation from those if debts are not paid.

32. Notwithstanding what was said in those reports, the AAT said that they did not accept that there had been any loan given to the applicant at all.  The AAT also had regard to the information about the economic circumstances in Vietnam.  The AAT concluded that the applicant was a young woman with tertiary qualifications in a field for which there is some demand. 

33. The AAT noted that the applicant has a familial support network in Vietnam.  The AAT did not accept that, if the applicant went back to Vietnam, she would be subject to economic circumstances that would make it difficult for her to subsist.

34. The AAT looked at how people relocate in Vietnam.  Having regard to that evidence, the AAT said that even if they were wrong, and the applicant may be subject to some menacing conduct from her cousin, the AAT did not believe that the applicant would face any significant difficulty in relocating. 

35. The evidence of the applicant was that her friend, THL, was able to thwart the debt recovery methods of NTT simply by relocating to somewhere else in Vietnam. 

36. The AAT also looked at information about the treatment of people who have returned from western countries back to Vietnam.  Even though the applicant did not make any specific claim regarding her return to Vietnam, the AAT still looked at this aspect.  The AAT said that the country information does not support the existence of a well-founded fear of persecution or harm simply because someone was a failed asylum seeker. 

37. The AAT looked at the cumulative claims of the applicant.  The AAT came to the conclusion that the applicant did not satisfy the requirements of the refugee criterion.

38. The AAT came to the conclusion that the applicant did not satisfy the requirements of the complementary protection criterion. 

39. Having come to those conclusions, the AAT affirmed the decision not to give the applicant a protection visa. 

40. The application before this Court proceeded upon three grounds of application. 

41. The first ground was that:

    The Administrative Appeals Tribunal has erred jurisdictionally in its assessment of the criterion (‘refugee criterion’) for a protection visa in s 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’).

42. This is a very difficult ground to consider having been made out. This is because the AAT was at pains to not only explain to the applicant, but to put in their reasons what it was that they considered as far as the refugee criteria was concerned. 

43. Paragraphs 4, 5 and 6 of the decision of the AAT illustrate a perfect knowledge of the criterion for refugee status.  The assessment of the claims of the applicant were made against those criteria.  Paragraph 52 of the AAT’s reasons is the summary of what the AAT has considered as far as the refugee criterion is concerned.  The AAT also looked at the issue of relocation.

44. There is nothing to suggest at all that there has been any error in the assessment of the refugee criterion.  For that reason, ground number 1 fails.

45. Ground number 2 is that:

    The Administrative Appeals Tribunal has erred jurisdictionally in its assessment of the criterion (‘complementary protection criterion’) for a protection visa in s 36(2)(aa) of the Act, relevantly read with s 36(2B)(a).

46. This ground also is very difficult to make out. At paragraph 7 of the AAT’s reasons, the AAT sets out perfectly the matters needed to satisfy the complementary protection criterion.  At paragraph 53 of the reasons, the AAT has measured the claims of the applicant against the appropriate complementary protection criteria.  The AAT has looked at the ability for the applicant to subsist economically in Vietnam and has also looked at what would happen to her as a failed asylum seeker returning to Vietnam.  The issue of relocation had also been considered in this respect as well.

47. Having regard to all of those matters, it cannot be said that there has been any error made by the AAT in its assessment of the complementary protection criterion.  For this reason, ground 2 also fails.

48. The third ground is that:

    The decision is legally unreasonable. 

49. For this ground to be successful, it must be shown that the ultimate conclusion reached by the AAT was one that was simply not reasonably or rationally open on this evidence.  Having gone through the decision of the AAT in some detail, I am of the view that the conclusion reached by the AAT was definitely one that was open upon the evidence before it.  For this reason, ground 3 also fails. 

50. In the affidavit that was filed with the application, the applicant said this, at paragraph 8:

    I believe the AATs decision was unreasonable and I was not provided with natural justice to present my case.

51. Even though this ground was not on the application, I have considered this as a fourth ground, where the applicant is claiming that she was not provided with natural justice. 

52. The exhaustive statement of natural justice and procedural fairness appears in the Migration Act 1958 (Cth) from section 422B onwards. The AAT has assessed the evidence once the applicant had made her application. The AAT has said that it could not make a finding favourable to the applicant on that material alone.

53. The AAT has invited the applicant to attend a hearing where she could further her claims.  The AAT allowed the applicant to speak and to present her claims.  It would seem that the applicant had actually asked for the hearing to be adjourned on two separate occasions, and the AAT did adjourn it.  The AAT ensured that it was not looking at the evidence in an overcritical way. 

54. Paragraphs 36 to 41 of the AAT’s reasons illustrate the fair and proper manner in which the AAT approached its task.  The AAT’s assessment of a claim that the applicant did not even make, with regard to the returning to Vietnam as a failed asylum seeker, is an illustration of the fairness and thoroughness of the AAT in ensuring that every aspect of the claim of the applicant was considered fairly and thoroughly.

55. There is simply nothing to illustrate that the AAT did anything but provide the applicant with natural justice in regards to her claim.  For those reasons, that ground also fails. 

56. The applicant appeared before me today unrepresented, but assisted by an interpreter.  After explaining to the applicant the purpose and limitations of a review hearing, I invited her to make whatever submission she wished. 

57. The applicant said to me that if she goes back to Vietnam, she will be very scared.  She said that whenever she thinks of going back to Vietnam, she feels under “a great pressure”.  She said that she simply does not want to think about the prospect of returning.

58. She said that if she stays here in Australia, she feels safe and secure, unlike how she would feel if she were back in Vietnam.  She said to me, “I want the court to reconsider the matter and give me another chance.” 

59. I explained to the applicant, in accordance with what I had said to her at the beginning of the hearing, that it was not the job of this Court to reconsider her application.  I said that if this Court returned the matter back to the AAT, then the AAT would reconsider the application, but I said that this would only happen if there were some error in how the AAT had dealt with her matter.

60. After I explained this to her, the applicant did not want to make any further submissions. 

61. The applicant cuts a very sympathetic figure before this Court.  It is very difficult not to feel sympathy for her, but these decisions, and in fact any judicial decision, cannot be made simply on the basis of sympathy.  The duty of the Court is to critically assess the decision of the AAT and to determine whether it has been infected by jurisdictional error. 

62. If it has not been affected by jurisdictional error, then the duty of the Court is clear, as it is in this case. 

63. I dismiss the application.

64. I order that the name of the Minister be amended to its current iteration, and I order that the applicant pay the costs of the Minister fixed in the sum of $6,500.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Vasta.

Associate:

Dated:       15 June 2023