CRB18 v Minister for Immigration
[2020] FCCA 864
•16 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRB18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 864 |
| Catchwords: MIGRATION – Visa – protection visa – whether Tribunal considered claims made by applicant – request for impermissible merits review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Judiciary Act 1903 (Cth) s.39B |
| Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 HCA 40 Lee v Minister for Immigration and Indigenous Affairs [2005] FCA 464 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | CRB18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 198 of 2018 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 3 February 2020, 3 March 2020 |
| Date of Last Submission: | 3 March 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 16 April 2020 |
REPRESENTATION
| The Applicant: | In person with an interpreter |
| Counsel for the Respondents: | Mr Retallick |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent in the amount of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 198 of 2018
| CRB18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) for judicial review of a decision of the Administrative Appeals Tribunal dated 3 May 2018. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant appeared before me self-represented. She had the assistance of an interpreter in the Vietnamese language. During the course of proceedings before me on 3 February 2020, it became apparent that the applicant had only received the written outline of the first respondent shortly before the hearing. I arranged for the interpreter to translate the document to her in the precincts of the Court and adjourned the matter for further submissions to 3 March 2020 on which day an application for the applicant’s husband in almost identical terms to this matter was listed for hearing.
On 28 June 2018, a Registrar of this Court gave the applicant leave to file and serve any amended application by 7 September 2018. She was also given leave to file and serve such further material, including the transcript of the proceedings before the Tribunal that she may seek to rely upon at the hearing. The applicant was also ordered to file and serve an outline of submissions 10 business days prior to the hearing. The applicant has not filed any amended application, further materials or an outline of submissions.
The applicant relies on her affidavit filed on 23 May 2018. That affidavit annexes a copy of the decision of the Tribunal but otherwise adds no matters of substance to the application. She indicated that she relied on the materials in the Court book.
The application was made within time. It raises one ground reproduced verbatim as follows:
“The AAT – Migration and Refugee Division is not giving consideration to the evidence provided by the effect that the applicant will be harmed upon her return to home country. The applicant also stated that the creditors of the applicant’s home country will possibly kill or torture her and her husband if they return to home country. The Tribunal has not given consideration to the evidence provided to support these claims. Accordingly, the Tribunal has erred as a matter of law.”
Background
The background to these proceedings was not in dispute. The applicant is a Vietnamese citizen and arrived in Australia on 9 December 2016. She travelled to Australia on a sponsored family visa (subclass 600) which expired on 9 March 2017. She had previously visited Australia between November 2008 and February of 2009 and again between March 2010 and June 2010.
On 4 March, the applicant applied for the visa the subject of these proceedings. The delegate refused to grant the visa to the applicant. The applicant applied for a review of the delegate’s decision within time. In the course of preparing for the merits review, the Tribunal wrote to the applicant on 19 February 2018 and asked her to comment on adverse information that it had received.
The information of which she was placed on notice was that the answers given to questions 89 to 96 in part C of her visa application were identical to a number of other applications before the Tribunal at that time. The Tribunal did not receive any response from the applicant in relation to that letter.
The applicant was invited to attend and did attend before a hearing of the Tribunal to give evidence and present arguments relating to the issues arising in her case. That hearing occurred on 9 March 2018. The applicant had the assistance of a Vietnamese interpreter on that occasion.
The Tribunal identified the applicant’s claims as being that she claimed to fear harm because she lived in hardship due to the poor economy but also because she owed money to a creditor who had threatened her and that she feared the creditor would beat, injure or kill her. She claimed that she could not relocate within Vietnam and that if she did the authorities would not offer her protection as there were socio-economic problems. These were the claims made at the time of the visa application.[1]
[1] Court Book (‘CB’) 41-43.
During the course of the hearing before the Tribunal, the applicant made new claims. These were to the effect that in 2014 she had started what is referred to as a Hui, a type of loan scheme. She started the Hui together with her husband. The scheme involved subscribers who were recruited to take part. Some of the subscribers to the scheme failed to make repayments to the applicant and her husband. In order to cover the shortfall, they were required to borrow money. They did not repay the money as they were not able to.
They feared harm from creditors who had threatened to kill them. The applicant claimed that her mother had been threatened in Vietnam and that the police could not assist her because of the illegal nature of Hui loan schemes. She also claimed to fear harm because of her association with the Khmer Krom ethnic group.
Tribunal decision and findings
The Tribunal made significant findings of credit against the applicant.[2] It found that she was not a credible witness and that she had not been truthful in relation to her experiences in Vietnam or her reasons for leaving that country. It found that she had not been truthful about her fears of harm if she were required to return to Vietnam.
[2] CB, 110 [53].
A matter that the Tribunal gave weight to was that the applicant’s claims were at least in part worded identically to other claims made by a number of other Vietnamese asylum seekers who had also lodged applications for protection visas.[3] The Tribunal also found that the applicant did not provide a reasonable explanation as to why she had made new claims and provided new evidence only after the delegate had made the decision to refuse the application for a visa. The Tribunal was prepared to, and did, draw an inference unfavourable to her credibility in relation to those claims. The Tribunal did not accept that the claims were genuinely made, and further concluded that in light of the decision of the delegate, she had sought to manufacture false evidence in further support of her protection visa application.[4]
[3] CB, 111 [60].
[4] CB, 111 [64].
Having considered the claims made by the applicant, the Tribunal was not satisfied that there was a real chance that she would face serious harm if she returned to her country of origin because she feared threats from creditors from whom she and her husband had borrowed money in order to make good the shortfall in the Hui loan scheme. It considered that claim in terms of the reasonably foreseeable future.
The Tribunal was not satisfied that there was a real chance that the applicant would face serious harm if she returned to Vietnam in the reasonably foreseeable future because of her claimed association with the Khmer Krom ethnic group or because of the fact that she took part in protest activity in Australia. It found those claims to be disingenuous. For that reason, the Tribunal found that her claimed fear of persecution because of her race and/or actual or imputed political opinion was not well-founded.[5]
[5] CB, 112 [69]–[70].
In reaching that conclusion, the Tribunal made specific note of the fact that the applicant claimed that she had taken part in protest activity in 2008 but had travelled back to Vietnam in February 2009 and in June 2010 after she had visited Australia. The Tribunal simply did not find it credible that the applicant would claim to have a fear of harm because of her association with the Khmer Krom but not apply for protection at an earlier time when she was visiting Australia.
Having made those findings, the Tribunal was also not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Vietnam there was a real risk that she would suffer significant harm. For those reasons, the Tribunal concluded that the applicant did not satisfy either the refugee criteria or the complementary protection criteria and affirmed the decision of the delegate.
Submissions
After the applicant’s ground of application had been translated to her in Court by the interpreter, she was asked what submissions she had to make. In essence, she complained as to the factual findings of the Tribunal. She told the Court that what she had put in her ground of application was true and if she was returned to Vietnam, she would have visits every day from the creditors. She asked the Court to give good consideration to her ground of application. Whilst she missed her children in Vietnam, she has made the application because if she went back to that country, she would be subject to frequent visits from her creditors.
When this matter returned before me, the applicant initially told the Court that she had no further submissions to make. She then added in reply to the submissions of the first respondent that the Tribunal had not taken into account that she would face danger because of her association with the Khmer Krom if she returned to Vietnam.
The submission of the first respondent was brief and substantially relied on its written outline of submissions. It was submitted that the ground both as pleaded and articulated was no more than a general disagreement with the findings of the Tribunal and an invitation to undertake an impermissible merits review.
Consideration
I accept the submission of the first respondent. A fair reading of the decision record of the Tribunal showed that it properly identified the claims, engaged in and undertook an active intellectual assessment with respect to all of them. It clearly gave close consideration to the claim that the applicant was at risk of harm from the creditors, including that they might kill her and her husband.[6]
[6] CB, 107 [27], 108 [32], [34], [35] & [37].
As submitted by the first respondent, questions of weight are a matter for the Tribunal. This is an essential part of its fact-finding function.[7]
[7] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 HCA 40; Lee v Minister for Immigration and Indigenous Affairs [2005] FCA 464 [27].
The reasoning of the Tribunal was considered and intelligible. It cannot be said that it failed to address an integer of the applicant’s claims. I am satisfied that the credibility findings made by the Tribunal were open to it. In essence, the applicant appeared before me to complain about the outcome of the Tribunal hearing. Whilst the boundaries of judicial review are not set in stone, it has been repeatedly observed that they do not encompass a merits hearing.
I also accept the submission of the first respondent that contrary to the wording of ground 1, the applicant did not claim to the Tribunal that she would be tortured by the creditors. That was not a claim that had been raised before it. In any event, as I have said, the Tribunal did give close consideration to all of her claims with respect to fear of harm at the hands of creditors.
The applicant’s complaint in this matter really amounted to an emphatic disagreement with the decision of the Tribunal. The comments of the Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[8] are appropriate in this matter:
“….the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S 157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
[8] [2004] FCAFC 10, [10].
The applicant has been unable to demonstrate that the decision of the Tribunal was tainted by jurisdictional error. Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 16 April 2020
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