DCQ17 v Minister for Immigration

[2017] FCCA 3293

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCQ17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3293

Catchwords:
MIGRATION –Review of decisions – protection visa (Pt 7 – reviewable) decisions – conduct of review – credibility of applicant.

Applicant: DCQ17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 647 of 2017

Judgment of: Judge Jarrett

Hearing date: 11 December 2017

Date of Last Submission: 11 December 2017

Delivered at: Brisbane

Delivered on: 11 December 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entering a submitting appearance

ORDERS

1. The application for review filed 12 July 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00 to be paid within sixty (60) days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 647 of 2017

DCQ17

Applicant

And

MINISTER FOR IMMIGRATION AND 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 that was made on 4 July, 2017.  That decision affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Protection (Class XA) visa.  The applicant contends that the Tribunal’s decision is affected by jurisdictional error because it failed to take into consideration relevant material and did not give the applicant’s claims appropriate consideration.  So much appears from the grounds set out in her application for review.

2. The Tribunal decided to affirm the delegate’s decision to refuse the applicant a protection visa because it did not believe her claims.  I will deal with this shortly. 

3. The applicant is a citizen of Taiwan.  She arrived in Australia on the last occasion in July, 2015.  She was in Australia on a working holiday visa.  It came to an end in October, 2015 whereupon she applied for a protection visa. 

4. The grounds upon which she applied for the visa set out in her application were that she was indebted to people described by her as “loan sharks” who had threatened her and harassed her because she was unable to or did not pay back to them amounts that she had borrowed from them.  There was not much else to her claim according to her application.

5. Not surprisingly, a delegate of the first respondent refused the application, and, as the first respondent points out in his written submissions, although the delegate had some concerns about the credibility of the applicant, the delegate found that there were, in fact, effective protection measures available to the applicant in Taiwan from the Taiwanese authorities if, indeed, she was subjected to the threats and harassment and intimidation of which she claimed.  Accordingly, the delegate found that she was not a refugee for the purposes of the Migration Act 1958.

6. The Tribunal decision was given after the applicant had the opportunity to attend a hearing before the Tribunal and present evidence and arguments in support of her application.  The hearing was necessary because the Tribunal was unable to determine the application in the applicant’s favour on the papers before it. 

7. In its reasons for decision, the Tribunal set out at length the applicant’s claims.  It summarised those claims in the reasons for decision as they appeared from the applicant’s visa application and as they appeared from the additional submissions that were made by her at the hearing although they seem to have been brief.

8. The Tribunal records in its reasons for decision the process that occurred at the hearing.  It was not suggested in the course of submissions before me that the Tribunal has misrecorded any of the exchanges between the Tribunal member and the applicant during the course of that hearing.  It is not suggested that the Tribunal did not understand the applicant’s claims or had misinterpreted those claims in some way. 

9. At paragraph 49 of the Tribunal’s reasons, the Tribunal records that it put to the applicant a range of inconsistencies in her evidence.  The inconsistencies arose between the claims in her protection visa application on the one hand and what she said to the Tribunal during the course of the Tribunal hearing and at other times.  The Tribunal said:

   49.    The Tribunal put to the applicant that there were a range of inconsistencies in her evidence between her protection visa application, what she had said to the Tribunal and what she had said to the Tribunal throughout the course of the Tribunal hearing. The Tribunal noted that these inconsistencies may cause the Tribunal to doubt the credibility of the applicant’s claims and her credibility generally. For example, the Tribunal outlined the following:

   ·     In relation to the applicant’s employment in the tutoring business, the applicant’s protection visa application states that she worked for the tutoring business from 2001 until 2007; the applicant confirmed these details at the beginning of the Tribunal hearing stating that she began working there in her second year of her tertiary qualification and she was part-time for the first four years and full-time for the remaining three years; the applicant then said that she began working in this business in 1997 as a 14-year old.

   ·     In relation to the loans the applicant took out, the applicant's protection visa application states that after starting the business with her boyfriend in 2001, the applicant took out a loan with a bank initially and in 2007, the business dropped and the bank did not approve another loan so the applicant took out a loan with a loan shark; in evidence to the Tribunal, the applicant said that she got together with her boyfriend in 2002 or 2003 and borrowed money from the bank and a loan shark in 2003 and the bank loan was her business as she largely used it for herself and the loan from the loan shark was her boyfriend’s business.

   ·     In relation to the harm the applicant says she has suffered, the applicant’s protection visa application states that whenever she delayed in repayments they would go to her house, workplace, or confront her in public to humiliate, harass her or threaten to kill her and she lost her job because they asked her to resign to stop the loan shark from coming to her workplace; in evidence to the Tribunal, the applicant first claimed that the harassment began six months after the loan was taken out when she found out her ex-boyfriend had not repaid the loan; the applicant then claimed that the loan shark harassed her and threatened that he would prostitute her and that is why she came to Australia in 2013 and then that the loan shark tried to imprison her in 2015 and she said she overheard them saying that they would drug her. The Tribunal noted that the applicant had also claimed that the only harm she suffered was some phone calls harassing her until she bumped into the loan shark in the street in 2015.

   50.    The Tribunal noted that these inconsistencies were fundamental to aspects of the applicant’s claim for protection but that the applicant had also claimed that the details in her protection visa should be the correct details and her application had been interpreted back to her before she submitted it. The Tribunal invited the applicant to comment. The applicant said that she did not know how it works in Australia but some details she could not remember. The applicant said that they did come and harass her at her workplace but she could not remember what year and she remembered more after 2012. The applicant said that because she has been harassed for so long, mentally and emotionally, she is not great. The applicant also said that when she got her letter of refusal of her protection visa application last November, it was only then that she understood that she could not apply for any other visa other than some sponsorship visa and all she knows is that she cannot go back to Taiwan because she might die there if she goes back.

10. On the basis of the Tribunal’s concerns about the applicant’s credibility, the Tribunal rejected the applicant’s claims that she had borrowed any money at all from the people she described as “loan sharks”.  In paragraph 59 of the Tribunal’s reasons, the Tribunal summarises its findings about the applicant’s credibility and sets out in summary form the basis of its determination about her credibility.

11. The Tribunal’s determination was summarised in paragraph 59 in three dot points, each of which, in my view, are supported by the matters referred to earlier in the Tribunal’s reasons.  At paragraphs 60 and onwards, the Tribunal expands upon its generalised finding in paragraph 59 and explains further the reasons why it concludes that the applicant was not a credible witness.  On the basis that the applicant did not establish the factual matters upon which her claims to protection were based, the Tribunal determined that she was not a refugee for the purposes of the Migration Act 1958 because she did not have a well-founded fear of persecution should she be returned to Taiwan.

12. The Tribunal also discharged its obligation to determine whether the applicant’s circumstances would mean that she would be at a real risk of significant harm should she be returned to the Republic of China, Taiwan.  It determined that she was not. 

13. Those two ultimate findings – that the applicant was not a refugee for the purposes of the Act and that she was not otherwise the subject of a complementary protection obligation – were well open to the Tribunal on the material before it.  The Tribunal’s reasons clearly explain why it reached the conclusions that it did.  The failure by the applicant to satisfy the Tribunal of the factual matters upon which her claim was based meant that her claim was bound to fail. 

14. There is nothing in the Tribunal’s reasons that I can see that would suggest that the Tribunal has denied the applicant procedural fairness or natural justice in any way.  It is apparent from the Tribunal’s reasons that the Tribunal has considered each of the applicant’s claims and arguments and the other material that the applicant chose to put before the Tribunal and the delegate. 

15. And as the solicitor who appears for the first respondent points out, the applicant’s grounds of review really misunderstand the Tribunal’s reasons.  They are based on the premise, false as it turns out, that the Tribunal had accepted the factual matters asserted by the applicant as the basis for her claims for protection.  The Tribunal did not and so no question of the protection that might be afforded by the Taiwan Police to her or any ongoing threat or harassment did arise. 

16. In those circumstances, I am not satisfied that the applicant establishes that the Tribunal’s decision is affected by jurisdictional error.  The application for review must be dismissed.

RECORDED:  NOT TRANSCRIBED

1. The application will be dismissed with costs.  Costs should follow the event.  The applicant does not oppose an order for costs, it seems, but so that it is clear, whether she opposed it or not, it seems appropriate that there should be an order for costs.  The amount claimed is reasonable.  I propose to order that the applicant pay the cost within 60 days of today.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 11 December, 2017.

Date: 22 December 2017