Dte17 v Minister for Immigration

[2018] FCCA 2262

FEDERAL CIRCUIT COURT OF AUSTRALIA

DTE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2262

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Applicant WAEE v Minister for Immigration [2003] FCAFC 184

Htun v Minister for Immigration (2001) 194 ALR 244

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

Applicant: DTE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2629 of 2017

Judgment of: Judge Driver

Hearing date: 16 August 2018

Delivered at: Sydney

Delivered on: 16 August 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S He of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,667 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2629 of 2017

DTE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 25 July 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions, filed on 9 August 2018. 

3. The applicant is a female national of Malaysia who arrived in Australia on 8 July 2016 as the holder of a Class UD (Subclass 601) Electronic Travel Authority.[1]  On 16 September 2016, the applicant lodged a protection visa application claiming to fear harm from one or more illegal finance companies to whom she owed money.[2]

   [1] Court Book (CB) 67

   [2] CB 1-51

4. In her protection visa application, the applicant claimed that she and her husband operated a restaurant in Kuala Lumpur and in 2014 she joined the Malaysia Chinese Association (the Association) to renew her business licence. She claimed that her membership of the Association caused problems for her and the operation of her business because of “tricks by opposition members” and “numerous unreasonable complaints” by officials from the city council and health bureau who regularly inspected her business and made “lots of unreasonable complain” (sic) about her business.  She claimed these problems made it difficult for her business to survive.  Further, the applicant claimed she was the subject of extortion attempts by “thugs”.  In an attempt to remedy the “huge financial problems” she was facing, the applicant claimed she borrowed money from an illegal finance company that began charging high interest.  She could not make repayments so she sold her business and relocated her family to Johor Bahru where she sought help from her family to care for her children and her parents.  The applicant claimed that the illegal finance company located her in Johor Bahru and after some deliberation she and her husband decided to move to Australia to seek “government protection”.[3]

   [3] CB 45, [90]

5. The applicant claimed to fear harm from the illegal finance company if she returned to Malaysia.[4]  She also felt strongly that the police could not protect her and her family because of police corruption.[5]

   [4] CB 45, [91]

   [5] CB 47, [96]

The delegate’s decision

1. In a decision dated 16 December 2016, the delegate refused the applicant’s protection visa application[6] on the basis that the applicant could avail herself of effective state protection in Malaysia. The delegate found that, on the basis of the applicant’s written claims, the applicant feared harm arising from the non-payment of a debt and the delegate was unable to conclude that the applicant’s fear of harm was for a reason identified in s.5J(1)(a) of the Migration Act 1958 (Cth) (Migration Act).[7]  The delegate had regard to independent country information in relation to “loan sharking” and law enforcement in Malaysia[8] and was satisfied that the applicant could reasonably expect to obtain protection from the Malaysian authorities.[9]  The delegate was not satisfied the applicant met the requirements for the grant of a protection visa.

   [6] CB 63-75

   [7] CB 71.5

   [8] CB 72-74.5

   [9] CB 74-75

The Tribunal

1. On 13 January 2017, the applicant applied to the Tribunal for a review of the delegate’s decision.[10]

   [10] CB 76-82

2. On 8 May 2017, the Tribunal invited the applicant to attend a hearing scheduled for 2 June 2017.[11]  On 26 May 2017, the applicant accepted the Tribunal’s hearing invitation.[12]  The applicant attended the scheduled hearing[13] and gave the Tribunal copies of pages from her Malaysian passport[14] and her Malaysian driving licence.[15]

   [11] CB 86-92

   [12] CB 93-95

   [13] CB 96

   [14] CB 97-99

   [15] CB 100-101

3. At the Tribunal hearing, the applicant made new claims that were inconsistent with the claims made in her protection visa application. She claimed that she and her husband borrowed money from a bank to purchase property and because they needed some capital. She also claimed that she and her husband made repayments on the bank loan while their business was “going well” but when the business started to fail their debts increased, they could not repay the bank loan and, when they stopped making repayments, the bank sent them a bankruptcy notice. The applicant claimed she borrowed money from four illegal finance companies in 2013 to prevent bankruptcy proceedings.[16]  She claimed she opened another restaurant to repay the finance companies, but when she could not make the repayments, she sold that business and used the proceeds from the sale to travel to Australia.  She made no reference to opposition party members causing problems or to extortion.[17]

   [16] CB 107-108, [20]

   [17] CB 108, [21]-[22]

The Tribunal’s decision

1. On 25 July 2017, the Tribunal made a decision affirming the delegate’s decision.[18]

   [18] CB 104-115

2. The Tribunal accepted the applicant was a citizen of Malaysia but found aspects of her evidence were “vague, implausible, contradictory and unconvincing” and that the new claims she made at the Tribunal hearing raised several inconsistencies.  The Tribunal concluded that the applicant was not a “credible or reliable witness”[19] and identified 12 sets of deficiencies and concerns with her claims and evidence to support this conclusion.[20]

   [19] CB 107, [14]-[16]

   [20] CB 107-111, [17]-[38]

3. The Tribunal found that in her protection visa application, the applicant claimed she joined the Association in 2014 but at the hearing she said it was her husband who was a member. She also said that one needed to join a political party to do business in Malaysia or to obtain/renew a business licence. The Tribunal found that if this was the case, then it would have expected her or her husband to have joined a political party in 1997 (when they opened their business) and not wait until 2014 as the applicant’s evidence indicated. It found this was inconsistent and raised concerns about the credibility of her evidence.[21]

   [21] CB 107, [17]-[18]

4. The Tribunal also found that the applicant gave “a completely different version of events” at the hearing than she had claimed in her protection via application.[22]  In her protection visa application, she claimed that she was subjected to “tricks” of opposition party members and threats from thugs for protection money and as a result she had problems in her business and borrowed money from an illegal finance company who charged high interest rates. However at the hearing, she claimed she borrowed the money to prevent bankruptcy proceedings and did not mention the problems caused by opposition party members or thugs threatening her for protection money.

   [22] CB 107-108, [19]-[22]

5. The Tribunal identified several inconsistencies in relation to the applicant’s employment history and found these inconsistencies raised concerns about her credibility. The applicant’s evidence to the Tribunal was that she “ran” a restaurant in Kuala Lumpur from 1997 to 2014, when she sold the restaurant.  She also claimed that she opened a second restaurant in 2015, which was sold in 2016.  However, in her protection visa application she claimed that she worked at a restaurant from January 1996 to “current” and was the owner’s wife. The Tribunal considered the applicant’s explanation namely, that “too many things had happened” and she was not “sensitive to the days” and she had not calculated the days correctly. The Tribunal did not accept the applicant’s explanation and found its concerns were not alleviated.[23]  Further, the Tribunal held the view that if the applicant had borrowed money in 2013 from an illegal finance company she would have wanted a reliable source of income to service that loan and found the applicant’s evidence, that she sold her business in 2014 and then went to the expense of buying and setting up a new business, “implausible”.[24]

   [23] CB 108, [24]-[25]

   [24] CB 108, [26]

6. The Tribunal also had concerns about the applicant’s inconsistent claims about her place of residence.[25]  In her protection via application, she claimed she relocated her family to Johore Bahru and the illegal finance company located them there. However, this claim was inconsistent with her oral evidence at the hearing that her family had lived with her parents-in-law in Kuala Lumpur for 20 years and her children continued to live in Kuala Lumpur with her parents-in-law, and that her children were in Johore Bahru and were safe.[26]  The Tribunal did not accept the applicant’s explanation for these inconsistencies when they were put to her.[27]

   [25] CB 109, [28]-[30]

   [26] CB 109, [29]

   [27] CB 109, [30]

7. Further, the Tribunal had several concerns about the applicant’s conduct, which it found was inconsistent with that of a person who genuinely claimed to fear harm. The Tribunal found that if the applicant feared harm then she would: not have continued living at her usual address in Kuala Lumpur, which was known to the illegal finance company;[28] have reported threats by the illegal finance company to the police as country information indicated the police were taking action to deal with illegal money lenders;[29] not have waited almost one month to travel to Australia in circumstances where she had a valid passport, a visa and the financial means to travel;[30] and have obtained immigration advice and filed her protection visa application without delay after arriving in Australia.[31]

   [28] CB 109, [29]-[31]; 110, [34]-[35]

   [29] CB 109-110, [32]-[33]

   [30] CB 110, [36]

   [31] CB 110-111, [37]

8. For these reasons, the Tribunal found the applicant was not a “witness of truth” and had “fabricated her material claims for the purpose of obtaining a protection visa”.[32]  It did not accept that the applicant or her husband were members of the Association and therefore did not accept any of her claims that flowed from that claim. Nor did it accept that the applicant borrowed money from an illegal finance company or any of her consequential claims associated with that claim.[33]

   [32] CB 111, [39]

   [33] CB 111, [40]

9. The Tribunal accepted that the applicant and her husband operated a restaurant, which they sold in May 2016, and decided to come to Australia and leave their children with the applicant’s mother-in-law. It also accepted that the applicant and her husband came to Australia for work and to save money.[34]  However, the Tribunal did not accept that the applicant came to Australia because she was in need of protection or that she feared harm from an illegal finance company or companies.[35]

   [34] CB 111, [41]

   [35] CB 111, [42]

10. Having considered the applicant’s claims, individually and cumulatively, and all of the evidence, the Tribunal found that the applicant did not satisfy the refugee or complementary protection criteria.[36]

    [36] CB 111-112, [43]-[46]

The present proceedings

1. These proceedings began with a show cause application filed on 21 August 2017.  The applicant continues to rely upon that application.  There are three grounds in it:

   ·The AAT committed jurisdictional error in that it failed to take into account a relevant consideration, namely the evidence of the Applicant that I had had harm in Malaysia and feared to return.

   ·The AAT committed jurisdictional error in that it failed to take into account a relevant consideration, namely the evidence of the Applicant as to the persecution suffered by me in Malaysia by the police.

   ·The RRT committed jurisdictional error in that it failed to take into account a relevant consideration, namely the totality of the applicant’s evidence relating to my application for protection visa lodged in Australia.

2. The application is supported by a short affidavit filed with it, which I received. 

3. I also have before me as evidence the court book lodged on 24 October 2017.  The applicant denied receipt of the court book and I provided her with the original from the court file.  I explained the contents of the court book to her.  She did not object to the receipt of those documents into evidence. 

4. Only the Minister filed written submissions in advance of today’s hearing. 

5. I invited the applicant to make oral submissions.  She submits that she was not given a fair opportunity to submit evidence in support of her claims.  She submits that when she arrived in Australia, she became aware of the need to support her claims for protection with evidence but was not given sufficient time to do so. 

6. It is apparent that there is no substance to that assertion.  First, the applicant had approximately six months between her arrival in Australia and the decision of the delegate to supply supporting evidence.  Secondly, when she sought review by the Tribunal, the Tribunal invited the applicant to submit additional evidence in support of her claims.[37]   

   [37] See CB 84, letter dated 16 January 2017

7. Thirdly, when the applicant was invited to attend the hearing for the Tribunal by a letter dated 8 May 2017,[38] the invitation to supply additional information was renewed.  The hearing response completed by the applicant[39] says nothing about additional evidence. 

   [38] CB 87

   [39] and reproduced at CB 93-96

8. The applicant conceded that she did not make any request to the Tribunal for more time to supply additional evidence.  In my view, the applicant has had ample opportunity to provide evidence in support of her claims and there was no procedural unfairness in the process followed by the Tribunal. 

9. I otherwise agree with the Minister’s submissions concerning the grounds of review advanced. 

Ground 1

1. Ground 1 asserts that the Tribunal committed jurisdictional error when it failed to take into account a relevant consideration namely, that the applicant “had harm in Malaysia” and feared to return to Malaysia.

2. The Tribunal considered the applicant’s claims that she and her family were threatened by the illegal finance company and that she feared harm on return to Malaysia.[40]  The Tribunal did not accept the applicant’s claims having raised several concerns about the applicant’s conduct, which it found was inconsistent with that of a person who genuinely claimed to fear harm. The applicant’s contention that the Tribunal failed to consider the harm she had experienced in Malaysia fails on the facts and is no more than an invitation for the Court to undertake impermissible merits review.[41]  It cannot succeed.

   [40] CB 109-110, [28]-[37]

   [41] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

Ground 2

1. Ground 2 asserts that the Tribunal committed jurisdictional error when it failed to take into account a relevant consideration namely, the applicant’s evidence that she had suffered persecution in Malaysia by the police. This ground cannot succeed because the applicant never expressly claimed to fear persecution by the Malaysian police, either directly or as a result of the police withholding protection for a Convention reason. Instead, the applicant had claimed in her protection visa application that police corruption in Malaysia was a serious problem and she felt that the police could not protect her and her family from the illegal finance companies. When the Tribunal asked the applicant whether she had gone to the police, the applicant said she had not because she had an agreement in writing with the illegal finance company and owed them money.[42]  This current contention effectively raises a new claim that was not expressly made and did not clearly arise on the materials before the Tribunal. Accordingly, the Tribunal was not required to consider this claim.[43]  Ground 2 cannot succeed.

   [42] CB 109, [32]

   [43] NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27; Applicant WAEE v Minister for Immigration [2003] FCAFC 184; Htun v Minister for Immigration (2001) 194 ALR 244 at 259 [42]

Ground 3

1. Ground 3 alleges that the “RRT” failed to take into account a relevant consideration, namely the totality of the applicant’s evidence relating to her application for a protection visa. Contrary to the applicant’s contention in this ground, the Tribunal considered the applicant’s claims, “individually and cumulatively” under both the refugee and complementary protection criteria.[44] Without any further particulars, this ground cannot succeed.

   [44] CB 111, [43], [45]

2. I conclude that the applicant is unable to establish an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rule 2001 (Cth) (Federal Circuit Court Rules).  

3. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not resist an order but inquired about time to pay.  I will not require payment by any particular time.  The applicant also renewed her claim for a protection visa. 

4. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,667 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  20 August 2018