DMN17 v Minister for Immigration

[2018] FCCA 3641

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMN17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3641

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), s.423A

Applicant: DMN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 419 of 2017

Judgment of: Judge Vasta

Hearing date: 27 November 2018

Date of Last Submission: 27 November 2018

Delivered at: Perth

Delivered on: 27 November 2018

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That the Application filed 2 August 2017 be dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 419 of 2017

DMN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 22 January 2012 the Applicant, DMN17, arrived in Australia on a Malaysian passport and on the auspices of a visitor visa.  That visa expired on 22 April 2012.  The Applicant was in this country unlawfully for some time.  On 22 February 2016, the Applicant applied for a protection visa. 

2. The Applicant’s claim was described as vague.  He had claimed that his parents borrowed money from a moneylender when their business did not make a profit.  When they struggled to make loan repayments, the creditors and debt collectors harassed and harmed the Applicant and his parents.  They also threatened them with death.

3. So they fled Malaysia and came to Australia.  The Applicant’s mother has cancer, so she returned to Malaysia, and the Applicant has been supporting her financially.  The Applicant fears that he and his family will face serious threats and harm from the debt collectors and creditors if he goes home and they do not repay the money.  The Applicant said that he had not sought help in Malaysia and police and government officials have been bribed by the creditors and debt collectors and they would be reluctant to help them.

4. The Applicant said he did not believe that authorities in Malaysia could protect him if he returned because they always received payments from creditors and debt collectors.  The Applicant said he had not seen any reports of police providing protection to a person who was harmed or mistreated by creditors and debt collectors and he said that he could not relocate within Malaysia because the creditors and debt collectors have associated all over the country and he would still be found.

5. In that application, it was noted that the Applicant did not provide any employment or education information in the application but he later said that he supported his family financially since his mother left Australia and returned to Malaysia. 

6. The delegate, in looking at the matter, also questioned the delay in seeking protection.  When the Tribunal had the matter, the Tribunal had two hearings, the first on 13 June 2017 and the second on 18 July 2017.

7. The Applicant gave more information to the Tribunal.  Even though he has said he only had a mother and a father in his application for protection, the Tribunal questioned him and discovered, through that questioning, that the Applicant claimed that he had an older brother, with whom he had no contact, two older twin sisters who were approximately 27 years of age and a younger step-sister who was the product of a relationship his father had subsequent to divorcing the Applicant’s mother.

8. It then transpired that the Applicant claimed that his parents separated in 2004 when he was about 13 years of age.  The Applicant then said that since the divorce he has had no contact with his father.  The Tribunal was concerned about this new information and queried why it wasn’t in his original application.  The Applicant gave the excuse that he made his application in Chinese script and that this was the reason that the Tribunal did not have that part of the application before them.

9. The Tribunal noted that the delegate had asked about the application and nothing had actually changed in the application from the time that it was before the delegate to a year later that it was before the Tribunal.  There were great inconsistencies, obviously, because the reason for fleeing was that there were threats made to the Applicant and his parents.  Those threats, though, seem odd if the Applicant had not had contact with his father since 2004 as to why that would necessitate the fear that he said that he had.

10. The AAT then adjourned the hearing on that 13 June so that the Applicant could think about the application and come back with some further material.  Notwithstanding that, there was no further material given to the AAT and when the second hearing occurred, the Applicant was asked if he had anything to add and he responded in the negative. 

11. The Tribunal asked him why he chose not to write to explain the matter and he blamed his lawyer in saying that the lawyer had been very unhelpful.  He said that he had completed the form properly to the lawyer and the lawyer submitted the form, which was incomplete.

12. The Tribunal then asked him about whether he was employed and, if so, whether he financially supported his family in Malaysia.  He said that he was not employed and acknowledged that the statement in his application for protection that he supported his family was incorrect.  The Tribunal asked the Applicant to explain why his family was still at risk of harm from moneylenders and criminal gangs, given the debt had apparently been raised by his parents when they were married and that the parents had become divorced in 2004.

13. The Applicant could provide no evidence about any harm to his family since 2012, including all of his immediate family members who remain in Malaysia.  He did, however, for the first time claim that he was assaulted by these criminal gangs when he was out celebrating on his 17^th birthday, which was in 2008.

14. Again asked why none of those details appeared in his original application for protection, he said that he couldn’t express himself clearly, he had difficulties making himself understood and that he needed to give more money to his lawyers.

15. He said that if he had had more time he could have done this.  The Tribunal pointed out that he had been given adequate time and he had notice of these concerns but had still done nothing.  The Applicant accepted that his application did contain significant inconsistencies. 

16. The Tribunal questioned the Applicant why it had taken him so long to apply for protection in the first place because he had been unlawfully in Australia for just short of four years when he made the application.  He said that he did not understand what to do.  He did not have money for an agent and his mother assured him that it would be all right if they stayed with their friends.

17. The Tribunal asked the Applicant why he stayed in Australia unlawfully without seeking an agent, a lawyer or speaking to the Department. The Applicant explained that he understood that, whilst he gave the excuse that he didn’t understand sufficiently, that this created a credibility issue for the Tribunal. The Tribunal referred to s.423A of the Migration Act 1958 (Cth) (“the Act”) where if a fresh claim is made and the Tribunal was satisfied the Applicant did not have a reasonable explanation why the claim wasn’t raised or the evidence presented before, that the Tribunal is obliged to draw an unfavourable inference to the credibility of the Applicant.

18. The Tribunal said at paragraph 59:

    59. Bearing in mind the requirement at section 423A of the Act, the applicant’s failure to correct incorrect information contained in this application for protection at the first reasonable opportunity, also reflects negatively on both that information and the applicant’s credibility as a witness. For this reason the Tribunal has been required to place very little weight on those aspects of the applicant’s evidence.

19. Even though it was not a claim that the Applicant made, the Tribunal looked at the treatment of returnees to Malaysia.  The Tribunal also considered that the Applicant now was the father of a child born on 15 May 2017.  He is listed on the birth certificate as the father and the mother is listed as a person who is resident of Hong Kong in Australia under a student visa arrangement.

20. The Tribunal looked at all of the relevant country information which suggested that the authorities in Malaysia are ready, willing and able to protect their citizens who have been threatened.  Having regard to all of those matters, the Tribunal came to the conclusion that the Applicant had not shown that he is a person who met the criteria for the refugee protection and also, then looking at the complementary protection, this Applicant did not meet those criteria either.

21. The Applicant filed this application on 2 August 2017.  The grounds of the application were these:

    1. The Tribunal failed to apply country information flexibly to my claims.

    2. The Tribunal took into account irrelevant issues.  Failure to provide the details of immediate family members does not mean that I am untruthful to my application.  I did not provide false or misleading information to the department regarding of my claims.

    3. The Tribunal made a finding without supporting evidence.  When I made the application of protection visa, I was not working at that time of application.  It did not prevent me from supporting my family financially when I had a job.

22. None of those three grounds raises any jurisdictional error.  The first ground of failing to apply country information flexibly means nothing without any detail.  There has been no detail given.  The country information was looked at appropriately by the Tribunal and the Tribunal applied it in a manner in which it was open for the Tribunal to do.  There can be no merit in that ground.

23. The second ground is that there was nothing irrelevant about these issues.  Irrelevancy in the context of judicial review means that the Tribunal was prohibited from taking those matters into account.  The matters of whether the Applicant had given the details of his family members when he should have is a matter that the Tribunal is able to take into account.  There is nothing in the legislation that says that they are prohibited from doing so.  Therefore, there is no merit in that ground.

24. The third ground is that the Tribunal made a finding without supporting evidence.  There is no detail as to what that finding is and the fact is the Tribunal’s findings usually are findings of non-satisfaction.  The Tribunal does not need supporting evidence to find that they are not satisfied about a certain matter.  So there is no merit in any of those grounds whatsoever.

25. When the Applicant appeared before me today, he was unrepresented and he had the aid of an interpreter.  It became fairly clear to me early on that that the Applicant did understand what it was that I was saying to him because of the way in which he would answer my questions directly by going into his native tongue and allowing the interpreter to then give me an interpretation of what it was that he said.

26. I make no negative comment on that at all, because this is a proper use of the interpreter, in that he was able to make sure that what it was that he wanted to say to me was put to me in an appropriate manner.  However, he made this concession, that those grounds were grounds that a lawyer created for him.  He said to me that he felt that the AAT was not being fair to him and he said that the AAT was impatient.  The AAT asked him to come back because they were so impatient with him.

27. It is trite to say that the AAT, in adjourning their proceedings, was actually being absolutely fair to the Applicant.  Whilst the Applicant says that the AAT was not being fair to him, the whole reason for the adjournment was to enable him to get further information, if it existed, to have a think about what he wanted to do with his application as a whole and to then be able to present matters in a cool, calm, collected way, rather than being put on the spot, as he was being put, during the hearing on 13 June 2017.  I cannot see that even though that ground was raised for the first time today that it has any merit, in any event. 

28. However, a totally new claim was raised before me.  That is, that the Applicant put to me that the AAT did not consider what would happen if his child returned to Malaysia with him.  He said that his child is innocent and that the child would be the subject of persecution in Malaysia.  That claim was not put to the Tribunal.  The Applicant did tell the Tribunal that he did have the child.  The Applicant made the submission that the AAT member believed that he planned to have that child, it would seem inferentially from what he was saying to me, as some form of ploy to be able to stay in this country.

29. There doesn’t seem to be any evidence at all that would back up such a statement.  I asked the Applicant why he didn’t make this claim before the AAT.  He said to me that he didn’t say this to the AAT because the AAT member would not believe him and the AAT member thought that he had an ulterior motivation.  I then asked, “Well, why wasn’t this aspect part of the grounds of the application before me?”  He said to me that he didn’t put this in his grounds because he was worried that the lawyer who he was giving instructions to wouldn’t write it correctly in his grounds and he thought that he would just do it this way; that is, raise it on the day of the hearing.

30. I said to him that it is my duty to only look at whether the AAT dealt with his claims in a proper manner.  If a claim had not been made, then the AAT could not be expected to deal with the claim.  The Applicant said that the AAT knew that he had a child and the AAT should have asked him whether he was making the claim on this child or asked him if he thought the child would be persecuted or ask him any number of questions.

31. It is trite to say it is not the AAT’s duty to ask those matters, it is for the Applicant to do so.  This claim is not something that would have arisen simply on the evidence.  That is because, on the evidence before the AAT, the mother of the child is a citizen of Hong Kong who is here in Australia on a student visa.  It was never a claim that the child would have to go back to Malaysia if the Applicant was deported to Malaysia and, therefore, I find that this was not a claim that was before the AAT and it is not something for which I can review the matter.  That means that there is no jurisdictional error in the AAT not looking at a claim that was not before them.

32. Given all of these circumstances and having had a thorough look at the reasons of the AAT myself, I come to the conclusion that there has been no jurisdictional error established.  I therefore dismiss the application with costs fixed in the sum of $6000.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 January 2019