DVW16 v Minister for Immigration

[2018] FCCA 2830

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVW16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2830

Catchwords:
MIGRATION ­Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 424A

Applicant: DVW16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1154 of 2016

Judgment of: Judge Vasta

Hearing date: 6 September 2018

Date of Last Submission: 6 September 2018

Delivered at: Brisbane

Delivered on: 6 September 2018

REPRESENTATION

The Applicant appearing on her own behalf :

Solicitors for the First Respondent: MINTER ELLISON

ORDERS

1. That the Application filed on 14 December 2016 be dismissed.

2. That that the Applicant pay the costs of the First Respondent fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1154 of 2016

DVW16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. In March 2014, the Applicant, DVW16, came to Australia after paying off a number of debts that she had.  On 24 June 2014, the Applicant applied for a protection visa.  The visa was refused by the delegate of the Minister on 22 April 2015.  The Applicant then sought the Administrative Appeals Tribunal to look over her application again, and she appeared before the Tribunal on 16 August to give evidence and to present her arguments.

2. On 10 November 2016, the Tribunal affirmed the decision of the delegate not to grant the protection visa.  On 14 December 2016, the Applicant launched the present application before this Court. 

3. By way of background, the Applicant is a citizen of Malaysia, with Indian ethnicity.  She grew up in Pahang in Malaysia and then moved to Selangor in 2007 for tertiary education and work.  Her father is a landowner and he earns income from others working his land.  Her mother is a housewife.  She has two older sisters in Malaysia. One is a teacher, one is a supervisor.  Both are married.  She claims that one sister had an arranged marriage and the other sister married for love.  She also has an older brother who is not married. 

4. The Applicant applied for the protection visa for two major reasons:  firstly she feared abuse from her ex-boyfriend, and secondly, she fears having to undertake an arranged marriage instigated by her parents. 

5. The Applicant gave evidence to the Tribunal about the relationship that she entered into with her boyfriend whom she knew from junior high school.  She said that the two of them became very close, and after she had graduated as a teacher she started working in a childcare centre.

6. It was then that the boyfriend started talking to her about his, and his family’s, financial problems.  She was giving part of her salary to him from the time that she started working.  She said that her parents were not aware that she was doing this.  She said that in 2009 she changed her job and worked in a bank as a manager in telemarketing and that her boyfriend asked her to help him get a loan.

7. What she did instead was apply for a credit card under her name which she was able to use.  She told the Tribunal that her boyfriend withdrew cash every month but did not pay back any money, so that she needed to pay back the debt and interest every month.  She said at that time she was studying for a bachelor degree and she didn’t have enough money to pay her fees and the credit card debt and that necessitated her taking out a loan under her own name.

8. She said that her boyfriend’s personality changed dramatically in 2010 and he started to become violent and impatient, which she attributed to the fact that the boyfriend, and his family, had debts, and that she needed to do what she could to financially support him. 

9. She then gave very curious evidence that in early 2012 she and her boyfriend were walking the streets and just happened, coincidentally, to meet her parents, who were also walking in the streets.  She said that this was the first time that her parents had ever met her boyfriend, notwithstanding that they had been in a relationship, it would seem, for quite some time, and certainly the five years after she had graduated and started working.

10. She said that it was obvious to her that her father did not like the boyfriend and that there was some form of unpleasantness on the street.  She said that she and her boyfriend returned to her flat and she was slapped twice on the face because of her father’s attitude. 

11. She then wanted to break up with the boyfriend because of his behaviour and the huge financial pressure, and she avoided seeing him, but he started coming to her workplace and threatening to show some form of private photographs that he had taken of the two of them together.  He said that if she did not return to him he would show these to her parents, her friends, and her colleagues.

12. In September 2013, she said that she got a private loan in her name from a loan centre with very high rates to pay off the boyfriend as a form of blackmail.  He then gave her the photos and she gave him the money.  She said she still fears that he has the negatives of these photos. 

13. She said, at that time then, the parents had done some research on her boyfriend and they knew about the family debt and they were not happy about that, and they were also not happy because the boyfriend came from a lower caste.  When she told her parents she had no intention of marrying her boyfriend they moved quickly to arrange a marriage for her to someone that she had never met. 

14. She said that she was unhappy, her boyfriend was extremely angry, that he came to her flat and he kicked her.  She cried out and a neighbour called the police and the police talked to both of them and then told the two of them that they had more important things to do.  She said, though, strangely, that she went to the police station the very next day in case her boyfriend had lied, but the police told her that they could not solve family matters.

15. She said that, in October 2013, her brother helped her apply for an overseas visa because she felt the pressure being applied to her from her parents and her boyfriend.  However, her parents found out and forced her to cancel the visa.  She said that in January 2014 she and her parents met with the arranged fiancé and his family, and she did not like him, and she did not want to marry him, but the parents had already arranged that there was going to be an engagement in June of 2014, some five or so months later.

16. She said that after talking to her brother he helped her apply for another visa and in March 2014 she left and she came to Australia. 

17. She claims that if she is returned not only will her parents force her into an arranged marriage but she feels that her boyfriend, or her ex-boyfriend, will look for her and demand her to keep giving him financial support. 

18. And she also claimed that her father stated that if she did not agree to an arranged marriage she would never see her parents again.  She took this to mean that as a result of her refusal her parents would die, though the logic of such a statement seems to have escaped the Tribunal.

19. The Tribunal, having heard all of that, came to a very logical consideration of the claims.  Whilst they accepted that the boyfriend had, in effect, asked her to give her money and she was giving him money, and that he asked her to take a loan for him and she instead decided to give him a credit card in her name, the Tribunal had real problems with other aspects of the story.

20. So whilst accepting the financial aspects of the relationship between the parents and between the Applicant and the ex-boyfriend, the Tribunal, not surprisingly, could not countenance that the first time that the parents met the boyfriend was on the street, by coincidence.  To use the words of the Tribunal in paragraph 27, when her parents’ car, and the car of the Applicant and her boyfriend, happened to park near to each other, the Tribunal “finds such a coincidental meeting occurring to be somewhat far-fetched”.

21. It also found it implausible that the Applicant could have been able to conceal her relationship with her ex-boyfriend from her parents for such a substantial number of years, particularly in light of the Applicant’s evidence that she had given about the close-knit Indian community in Malaysia and how “word gets around and other Indians know each other’s business.”

22. The Tribunal said that they could not accept that the Applicant’s father or parents, who were traditional and conservative, would engage in a heated discussion or argument with the ex-boyfriend of the Applicant on the public sidewalk, and that such an action was not consistent with what the Applicant had said regarding her parents’ nature.

23. Therefore the Tribunal did not accept that the Applicant’s parents were unaware of the relationship, or that there was any exchange between her ex-boyfriend and her father which indicated that they did not approve of the relationship.  Therefore the Tribunal was not satisfied that after this meeting the Applicant’s ex-boyfriend slapped her in the face twice.

24. The Tribunal, however, accepted the claim that she tried to end the relationship in mid-2012, and accepted her evidence about the blackmail with the photos, and accepted that she had paid money to the boyfriend for the photographs. 

25. The Tribunal also noted, at paragraph 30,that while the Applicant expressed concerns that her ex‑boyfriend may have copies of these photographs, or the negatives, the Tribunal noted that the Applicant confirmed she had no knowledge of whether her ex-boyfriend retained copies of these pictures, but stated she strongly feels this.  The Tribunal found that the Applicant’s claim was purely speculative.

26. The Tribunal did not accept that the Applicant and the ex‑boyfriend were involved in any verbal or physical altercations, and also found it difficult to reconcile the Applicant’s evidence in this particular point.

27. The Applicant had said that when the boyfriend found out about the arranged marriage that he assaulted her.  The Applicant said the boyfriend found out about it because her parents contacted him.  The Tribunal said this, at paragraph 32:

    The Tribunal finds it implausible that if the applicant’s parents knowledge was that she and the ex‑boyfriend were no longer together, for whatever reason, that they would contact her ex-boyfriend (or her ex-boyfriend’s family as she later claimed, when the Tribunal queried how her parents were able to contact her ex-boyfriend if they had only met him once, accidentally, as she had claimed).

28. The Tribunal did not accept that the Applicant was physically abused by the ex-boyfriend after her parents told him about those plans, and therefore the Tribunal did not accept that the police came to her place after a neighbour had called them, nor that the police told them that they had more important things to do.

29. At paragraph 34, the Tribunal said that they accepted that the Applicant experienced a number of difficulties in her relationship with her ex‑boyfriend in the past, particularly of a financial nature. Except she did end her relationship with him and she subsequently travelled to Australia.  The Tribunal said that they do not accept the Applicant’s claims that if she returned to Malaysia now she would be harmed by the ex-boyfriend.

30. The Tribunal said that although the Applicant claimed that her ex‑boyfriend is looking for her everywhere because he needs money, her evidence was that she has had no contact with him for the last two and a half years since coming to Australia.  While she claimed that her ex‑boyfriend contacted her parents for four months before the AAT hearing, wanting to know her telephone number in Australia, the Tribunal did not accept that there was such contact.

31. The Tribunal said that they found it implausible that after more than two years without any communication or interaction with the Applicant or her family that the ex-boyfriend would seek to make inquiries about her after such a long period of time.

32. The Tribunal said that given the lapse of time since the Applicant ended her relationship with her ex-boyfriend, and the fact she has had no contact with him for more than two and a half years, and is not aware of her ex-boyfriend’s circumstances, including whether he is in a relationship, the Tribunal found that the Applicant’s claims regarding her ex-boyfriend wanting to find her and harm her to get further financial assistance were purely speculative and therefore they did not accept that she faced a real chance of harm from her ex-boyfriend if she returned to Malaysia.

33. The Tribunal then looked at the aspect of the arranged marriage.  Again, the Tribunal said that if the Applicant’s evidence was correct, the parents first met the boyfriend in 2012, did not like him then.  She said that she was not going to marry the boyfriend.  The parents were trying to find a groom, but it was only in September 2013 that they actually found someone, and then there was no meeting then until January 2014 with an engagement organised to take place in June 2014.

34. Such a timeline is not consistent with the allegation that the parents were hurriedly, urgently looking to find her a suitable partner.  The Tribunal also took into consideration the Applicant’s evidence that despite fleeing Malaysia because of the alleged engagement that was organised for June 2014, the Applicant had been in regular contact with her parents by phone, particularly her father, ever since she has been in Australia.

35. The Tribunal had difficulty accepting that if the parents had allegedly found a suitable husband for the Applicant, and had taken her forcibly to meet with him, and had settled on an engagement date, and the Applicant had fled from the country, bringing that arrangement to an end, that the Applicant’s parents would actually be on speaking terms with the Applicant, given the shame and embarrassment her actions would have had on her parents, particularly in the light of her evidence that they had threatened not to speak to her again if she did not go through with the arranged marriage.

36. So given that, the Tribunal found it implausible that the Applicant’s parents had any intention of forcing the Applicant into an arranged marriage.  Having made those findings, it then applied that to the criteria for protection needed for a refugee reason and found that the Applicant’s fear of persecution was not well-founded, and so therefore there was no criteria for a refugee that had been met.

37. Then looking at the complementary protection obligations, given the findings that the Tribunal had made, the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under ss. 36(2)(aa), and those were the reasons for affirming the decision not to grant the Applicant a protection visa.

38. The application before this Court listed three grounds of application.  They are: 

    (1) In making the decision, the Administrative Appeals Tribunal denied the applicant natural justice or procedural fairness.

    (2)The Tribunal made the decision without allowing the applicant an opportunity to be heard in relation to adverse allegations made against her by the Tribunal.

    (3) The Tribunal appeared to be biased.

39. When I asked the Applicant today about those grounds it is clear that someone else has written those grounds for her and she has no real understanding of what those grounds are.  Nevertheless they do have to be answered. 

40. Firstly, with regard to the assertion that the Applicant was denied natural justice or procedural fairness, it is quite clear that the Tribunal did comply with its procedural obligations pursuant to division 4 of Part VII of the Act. 

41. The obligations pursuant to s.424A were not enlivened. These were simply matters where the Applicant gave her story and the Tribunal did not accept it. That is a matter for the Tribunal. The Applicant herself could not tell me what part of the Act regarding procedural fairness had been not complied with. In my reading of the reasons, there is nothing in that particular ground and it fails.

42. The Applicant today did not talk about what the adverse allegations were that she needed to be given an opportunity to be heard about.  It simply is a ground that was made without any real particularity, and there is no merit in that ground. 

43. Ground 3 was an assertion of either actual or apprehended bias.  As I have said in this Court many times before, I do not see in these matters that a ground of apprehended bias should ever be considered because it is a closed hearing. There can be no impartial bystander at the back of the hearing because bystanders are not allowed to be part of the hearing.  Therefore it is a case of either bias or no bias.

44. The Applicant herself simply really talked about disagreeing with the decision; that in itself does not connote bias.  So there is no merit in that ground.

45. When the Applicant appeared before me today, she simply took umbrage at the Tribunal’s reasoning, saying that the Tribunal had made their decision because there had not been a threat made against her since she had come to Australia, but the Tribunal did not look at her safety if she went back. 

46. That is incorrect, because the Tribunal did not accept that there was any matter for which she needed to be protected if she did go back to Malaysia.  That was simply that that is the finding that they have made on a matter of fact and the Applicant is attempting to ask this Court to impermissibly make a merits review. 

47. The Applicant kept pointing out to this Court that the parents had made an arranged marriage and that she still has the threat of her ex‑boyfriend.  The problem for the Applicant is that the Tribunal has already made findings with regard to those, and those findings were well and truly open on the evidence.

48. The Applicant misspoke and said that the Tribunal had talked about the fact that she could relocate in Malaysia.  The Tribunal had not said that.  It does seem as though the delegate may have mentioned that, but the Tribunal did not talk about relocation.

49. The Applicant then told me that her ex-boyfriend is still single.  I asked her how she knew that and she said that some of her friends have told her that he is still single.  This is an obvious matter where the Applicant has actually read the findings of the Tribunal and where the Tribunal said that the Applicant, after two and a half years in Australia, does not know what the status of the ex-boyfriend is.  As if to show that the Tribunal was wrong, the Applicant said that just before she came to this Court, she had been in contact with friends who have told her that the ex-boyfriend is single.

50. That sort of evidence does, to my mind, show the blatant dishonesty of the Applicant in that she will, in effect, manufacture evidence to somehow counter what the Tribunal has said. Yet she had been given an opportunity to amend her application and to put forward arguments when she first appeared in this Court, and has failed to do so. To then make eleventh hour assertions of fact from the Bar table hardly enhances her credibility.

51. All in all, having gone through the decision of the Tribunal as I have, I can find that there is no jurisdictional error. 

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 18 October 2018