DFZ18 v Minister for Home Affairs

[2019] FCCA 578

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFZ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 578

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: DFZ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 617 of 2018

Judgment of: Judge Vasta

Hearing date: 18 February 2019

Date of Last Submission: 18 February 2019

Delivered at: Brisbane

Delivered on: 18 February 2019

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. That the application for an extension of time is refused.

2. That the Applications filed 22 June 2018 and 18 September 2018 are otherwise dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 617 of 2018

DFZ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 13 September 2017, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate not to grant the Applicant, DFZ18, a protection visa.  That decision gave the Applicant 35 days in which he was to lodge any application in this Court to review the decision.  The Applicant filed an application on 22 June 2018.  The 35 day limit was up on 18 October 2017 and so it is a period of just over eight months after that date that the Applicant filed the application.  Therefore, he has to convince this Court that it should grant an extension of time within which to file the application. 

2. There are three aspects that the Court will look at in deciding whether or not the application for extension of time should be granted.  They are firstly, what is the reason for the delay; secondly, what prejudice, if any, is there to the Respondent; and, thirdly, is there sufficient merit in the application to warrant it being heard by a Court.  It is this third aspect that I will look at to start with. 

3. The Applicant made a claim for protection about two months after first coming to this country.  He claimed that he borrowed money from loan sharks to purchase a motorbike.  He was then threatened and attacked when he could not repay the loan.  The AAT asked the Applicant to come to a hearing to decide whether or not the visa ought to be granted or not. 

4. The Applicant confirmed at the beginning of the hearing that he had made the claim, in his application, that a person called ‘Sheh’ assisted him for translation purposes, but that the words or the gist behind it was his personal account. 

5. The Applicant told the Tribunal that he came to Australia because he could not obtain work in Malaysia because he had a conviction for stealing a motorbike.  He said he was imprisoned between 2008 and 2010.  The Applicant admitted that he did not declare that conviction in his application for protection, nor did he declare it when he applied for his visitor visa, which was approved electronically.  He also admitted that he did not declare that conviction on his incoming passenger card. 

6. The Applicant said that he did not do this because this was his first overseas trip and he just made an omission.  He said that because he was so young at the time of the offence, he was advised upon his release from prison that his name was not recorded due to his age.  He said that he was 17 years old when he first went to prison and he completed his schooling there. 

7. He said that he worked for an oil platform manufacturer in Malaysia, and he obtained that position though a connection.  His criminal record was unknown to his employer.  He left that position to pursue employment on another project, but his employment was denied because of his criminal record.  Then he went to work with his father building fences and awnings for houses. 

8. When the Tribunal questioned him, as to his earlier evidence where he said that he had thought that his name was not recorded for a conviction because of his age as reason for not declaring the conviction to the Australian immigration authorities, the Tribunal asked why he gave evidence that he was refused employment on account of his criminal record. The Tribunal said to the Applicant if that was known as a reason to refuse employment, then, of course, it would be something that the Applicant should have declared to the immigration authorities. 

9. The Tribunal advised the Applicant that the inconsistency might undermine his credibility, and they asked him to comment.  He said that he had no comment.  The Tribunal noted that the evidence concerning the criminal record was delivered in an evasive fashion with much inconsistency and obfuscation. 

10. The Applicant then told the Tribunal that he travelled to Australia with his uncle ‘Asri’ and his uncle’s wife and child in August 2016.  He said that his uncle had returned to Malaysia from a visit in Australia and spoke with the father of the Applicant about the Applicant coming to Australia to find some work.  The father approved, and the Applicant came to Australia with his uncle who assisted him to find farming work in Bundaberg.  The Applicant admitted that he commenced one month after arrival in Australia, even though his visa had given him no permission to work because it was a visitor or holiday visa. 

11. The Tribunal then asked the Applicant why he travelled to Australia, and he responded that it was to work, and, in addition confirmed that there was no other reason.  When asked by the Tribunal what he feared if he had to return to Malaysia, he replied, “I’m not scared of anything, I just want to find work”. 

12. The Tribunal asked the applicant if he needed a protection visa, and he said that he did not.  When asked by the Tribunal if his claims for protection were untruthful, he replied that the reasons he provided “are not correct”. 

13. The Tribunal drew to the Applicant’s attention that in his protection visa application, he made claims that he borrowed money from loan sharks regarding the purchase of a motorbike.  The Tribunal asked him if these claims were truthful or not, and he replied that the claims “are not the truth”.  

14. The Tribunal expressed to the Applicant that it had a concern with that evidence, and advised him that it tended to suggest he was not a refugee and that he was not entitled to make a complementary protection claim.  The Tribunal asked for the Applicant’s comment, and he said that he had no comment to make.  At the conclusion of the review hearing, he again confirmed his claims for protection were untruthful. 

15. The Tribunal then, at paragraph 21, said:

    The Tribunal has very carefully considered the applicant’s claims and the evidence before it. As previously outlined, during the review hearing the applicant admitted that his claims for protection were untruthful. Having considered these admissions, the Tribunal finds that his claims for protection are a fabrication and that he gave false information in his protection visa application. Accordingly, the Tribunal further finds that he has never faced harm in Malaysia resulting from interaction with loan sharks, nor will he face harm in the future from them if he returns to that country…

16. The Tribunal observed that the Applicant wilfully engaged in a blatant abuse of Australia’s protection visa system, and by his own admission he failed to declare a criminal conviction resulting in a period of imprisonment when required to do so in connection with his entry into Australia.  The Tribunal noted that the Applicant worked unlawfully in Australia for a period of time, and he lodged an untruthful application for protection.  Such conduct, the Tribunal said, reflected poorly upon the Applicant. 

17. Having made those findings, it is not surprising that the decision not to grant the Applicant the protection visa was affirmed.

18. The grounds of the application are ones that I will look at seriatim.  The first ground is:

    The AAT erred in law and erred in making findings of well-founded fear from loan shark. The applicant claims that the AAT wrongly applied the law to the fact as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group. Section 91 R 91O 9BO 79 C of the Migration Act requires the persecution to be of serious harm and systematic discriminatory.

19. The particulars given are that:

    During the tribunal hearing the AAT adopted a line of questioning designed to establish harm from the perspective of the applicant persecute why he harmed rather than address as to the motive.  The AAT made a decision based on very limited information about treatment of Loan Sharks with their customers.  They have no reasonable protection from the authorities to punish or minimise the loan sharks in Malaysia.  Without giving reasonable and good reasons, the Tribunal concluded that applicant’s claims for the protection are fabricated and the information given were false. 

    In his protection visa application. The applicant denies and claims that whatever he gave information was true.  He was not knowing how to present reasons in the application as he told to the Tribunal some body helped him in completing application for the protection visa.

20. There is no merit whatsoever in that ground or in the particulars.  The Applicant clearly admitted on a number of occasions that his claims were false.  It cannot be said that there has been any error of law or in fact-finding by the Tribunal.  There is no merit in ground 1.

21. Ground 2:

    The AAT made a jurisdictional error when it misconstrued the facts and made opinion without looking at all of the evidences of claim that the applicant is not a credible, truthful and reliable witness.  The applicant claims he was denied natural justice and procedural fairness when credibility test was not applied systematically and taking all the evidences not on some of the evidences.  Limiting the evidences for assessing the credibility is also against Procedural Fairness.

22. There were particulars given of that, but I am not going to reproduce them here.  The problem for the Applicant is that procedural fairness and natural justice are codified within the Migration Act 1958 (“the Act”).  There has been no claim as to what part of the codified rules of natural justice and procedural fairness have been breached here.  The opinion of the AAT that the Applicant was not credible, truthful or reliable extends from everything the Applicant said out of his own mouth, that is, that he said that his claims were not the truth.  There is no merit in ground 2.

23. Ground 3:

    The AAT erred in making decision when it used or implemented same factual findings for ‘Serious harm’ and a ‘significant harm’ for assessment of the applicant’s claim for Complementary Protection. 

24. There is no serious harm or significant harm raised at all in the Applicant’s evidence, because the Applicant said, out of his own mouth, that he does not fear any harm at all.  The manner in which the AAT then looked at whether he would face serious harm as a result of the refugee assessment, or significant harm as a result of looking at the complementary protection assessment really did not matter.  There was no evidence upon which it could have even looked at those matters, because of what the Applicant had said.  Therefore, there is no jurisdictional error made out by ground 3. 

25. Ground 4:

    The applicant claims that the AAT failed to assess the real risk criteria under the provision of complementary Protection Visa Provision s36(2) (aa). 

26. Again, there is no merit in this, because out of the Applicant’s own mouth, he said that he feared nothing in returning to Malaysia.  It is very difficult to say that the AAT failed to assess that criteria when it had absolutely no evidence upon which to look at that criteria.  Therefore, I find that there is no jurisdictional error that has been established by ground 4.

27. The Applicant appears before me today aided by an interpreter.  He said that someone came to his house looking for him three years ago and that he would like to get protection in this country.  He has not expanded at all on that, even though I have given him plenty of chances to do so. 

28. The Applicant has not shown or illustrated to me any jurisdictional error whatsoever.  Therefore, there is nothing of any merit upon which a Court should be looking at his claim.

29. I will then look at the second aspect, and that is whether there is any prejudice to the Minister, if I were to grant the extension.  There has not been claimed that there would be any prejudice to the Minister. 

30. I then look at the first aspect, and that is, what is the reason for the delay.  The Applicant has not expanded on this, but has given three grounds:

    1. I was totally unknown to the process of Judicial review in the Federal Circuit Court.

    2. I am facing financial hardship and cannot afford to the solicitor’s cost.

    3. I live in regional area Bunda berg [sic], where it is almost impossible to get any legal help.

31. None of those is a proper excuse for the failure to file the application within time.  None of those show that there is any particular reason why the Applicant did not file the matter by October 2017. 

32. Therefore, having a look at all of the matters, I am of the view that the application for an extension of time should be refused.

33. In all other respects, if any, the application should be dismissed with costs in the sum of $7,000.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:10 May 2019