DGV16 v Minister for Immigration

[2018] FCCA 3638

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGV16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3638

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

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Applicant: DGV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 545 of 2016

Judgment of: Judge Vasta

Hearing date: 26 November 2018

Date of Last Submission: 26 November 2018

Delivered at: Perth

Delivered on: 26 November 2018

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Counsel for the First Respondent: Mr A. Burgess

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, the Application filed 2 November 2016 be dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 545 of 2016

DGV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant, DGV16, was born in Kuala Lumpur, Malaysia in 1973.  He came to this country, it would seem, on 30 May 2011.  He has stayed in this country ever since.

2. On 10 November 2015, he made an application for a protection visa.  His original claims were that his life was in danger, and that is why he left Malaysia, saying that, “A debt collector named Ahwai will come to hurt me”.  He was asked whether he experienced harm in his country.  He said, “They came to my house, destroy everything inside, and threaten me in front of my mother and siblings”. 

3. He was asked about details about seeking help within his country after the claimed harm, and he said, “I have to try to move away, but then they threatened to hurt my family”.  The question, “Did you move or try to move to another part of that country to seek safety?”, was answered this way, “I have moved to my friend’s place, but no long.  The debt collector find me”. 

4. The Applicant claimed that he tried to avoid them, but they have a very strong network to find him, and he claims that they threatened his family.  He was asked whether the authorities in his country can and will protect him, but he said that he and his family tried to report the problem to police in 2007 to 2015, but the debt collectors still keep coming. 

5. The delegate refused to grant the visa and the Applicant applied to the Administrative Appeals Tribunal (“the AAT”).  On 1 October 2016, the AAT affirmed the decision. 

6. The AAT went through the evidence before it, and asked for as much detail from the Applicant as he could give.  After consideration, the AAT came to a view at paragraph 46 of their reasons that:

   …the applicant has exaggerated his claimed fear of harm at the hands of persons to whom he may owe money.

7. The AAT found that the evidence that the Applicant gave that the police have responded to his complaint about money lenders and the intervention of a Mr Chong in negotiating with his creditors, coupled with the delay in applying for protection after arriving in Australia, undermined his claim to be at risk of harm at the hands of money lenders in Malaysia. 

8. The AAT found that they accepted the Applicant’s claim that those from whom he borrowed money expected it to be repaid, and, to that end, they may have even visited his family home in their efforts to recover the loaned money. But in light of the country information and other circumstances, such as the delay in applying for protection, the Tribunal did not accept that the Applicant had been threatened with serious harm, nor did it accept that the Applicant was, at any time, bashed or otherwise harmed by money lenders seeking to recover their loan, or by anyone else.

9. The Tribunal said that they found the explanation of why the Applicant delayed applying for a protection visa for almost four and a half years after arriving in Australia as being evasive and unconvincing.  The Tribunal looked at the fact that the Applicant, whilst he has been here in Australia, has not repaid any of the loan, which seemed to fly in the face of there being threats of reprisals at his family if they did not repay the loan, and he has not done anything, even though he has been working in this country, to send money over to Malaysia to repay the loan. 

10. The country information indicated that the Malaysian police are generally effective, and there was no indication that protection would be withheld from the Applicant in Malaysia for reasons of his Chinese ethnicity. 

11. For those reasons, the Tribunal found that the Applicant did not have a well-founded fear of persecution now or in the reasonably foreseeable future in Malaysia. 

12. The Tribunal assessed the complementary protection claims, but, for much the same reasons, did not find that the Applicant was a person who had met the criteria for the complementary protection.

13. On 2 November 2016, the Applicant applied to this Court for review of the decision of the AAT. He has not appeared today even though he has had notice of the hearing. I will proceed pursuant to r.13.03C(1)(e) and determine the matter on the merits.

14. There were five grounds.  I will read them into the record:

    1. AAT was prejudiced and formed the view I had exaggerated my claimed fear of harm at the hands of persons to whom I owe money. 

    2. AAT has prejudice against me and did not believe me bashed or otherwise harmed by money lenders seeking to recover their loan.  

    3. AAT was very biased and didn’t accept my claims explaining the delay of applying for a protection visa.  AAT didn’t believe that I did not know of the availability of protection visas until a friend told me about it. 

    4. AAT tried to discredit me with my failure to make any payments to my lender when I am in Australia while I sent some money to my children.  The fact is I worked as a labour [sic], made very low income and even hard to survive.  I sent money to my children because no matter how poor I am, I am a father.

    5. AAT made unreasonable presumption that I do not face a real chance of “serious harm” and there appeared to be no indication that protection would be withheld from me in Malaysia.

15. Those five grounds really do not, in themselves, show that there has been any jurisdictional error, except if one were to put some store in a claim of bias.  The Applicant has not shown any evidence or even made any submission that would show that the Tribunal were of a mind that no matter what evidence the Applicant was going to put before it, it had already made up its mind so that the hearing was a farce. 

16. Such a submission is very difficult to sustain, especially when the Tribunal had ended up making a finding that the Applicant had borrowed money from loan sharks and had gotten in over his head, and those persons were wanting their money to be paid back.  It would seem to me that if the Tribunal were biased, as the Applicant claims, the Tribunal would not have put any store in that story whatsoever.  

17. The fact that they did show that they did have an open mind and were prepared to accept the Applicant as far as they were able to accept him.  What they have done is actually looked at all of the circumstances and arrived at conclusions that were open on the evidence. 

18. Therefore, I do not see that there is any evidence of bias, nor do I see that there has been any jurisdictional error.  I dismiss this application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 January 2019