DWT19 v Minister for Immigration, Citizenship and Multicultural Affairs

[2025] FedCFamC2G 231

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DWT19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 231

File number(s):	SYG 2596 of 2019
Judgment of:	JUDGE MCCABE
Date of judgment:	24 February 2025
Catchwords:	MIGRATION – protection visa – review of a decision of the Administrative Appeals Tribunal – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5AAA, 36, 424A, 430
Division:	Division 2 General Federal Law
Number of paragraphs:	33
Date of hearing:	12 February 2025
Place:	Sydney
Applicant:	The applicant appeared in person
Solicitor for the first respondent:	Mr M Burnham, Sparke Helmore Lawyers
Second respondent:	Submitting appearance save as to costs

ORDERS

SYG 2596 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DWT19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MCCABE
DATE OF ORDER:	24 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed.

2.The applicant pay the first respondent’s costs in the fixed amount of $5,000.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE MCCABE:

1. Mr DWT19 is a Chinese citizen. He came to Australia in 2008 as a young student. He has lived in this country ever since. Between 2010 and 2015, he remained in Australia without a visa.

2. Mr DWT19 lodged an application for a Protection (Subclass 866) visa (protection visa) in 2015. He claimed if he returned to China he would experience violence at the hands of loan sharks trying to recover money his father had borrowed. A delegate (the delegate) of the first respondent (the minister) rejected the application for a protection visa on 7 October 2016. On 26 September 2019, the Administrative Appeals Tribunal (the Tribunal) affirmed the delegate’s decision following a hearing. The applicant applied for judicial review of that decision on 4 October 2019, and the matter has now come on for hearing before me after a five-year delay.

3. There is no substance to any of the grounds identified in the application for review, and there was nothing apparent from a reading of the decision that suggests it is affected by material jurisdictional error. The application for review must therefore be dismissed. I explain my reasons below.

   BACKGROUND

4. The applicant initially entered Australia on 16 March 2008 as a student. His parents and sibling remained behind in China. Mr DWT19 had been issued a School Sector (Subclass 577) visa. He was granted a further visa in 2008 which expired 15 March 2010. He thereafter remained in Australia unlawfully until he lodged the application for a protection visa in 2015.

5. The application for a protection visa is reproduced in exhibit one (the court book). The substance of the claim is outlined as follows (at p 31 of the court book):

   The loan shark and their associates has threatened to kill me if I returned to China at their hands. My parents took out a short-term loan to pay for my study in Australia. Thereafter my father lost his job and we could not meet the repayment due. As a result, a group of thugs associated with the loan shark attacked and attempted to harm my family. The loan shark will harm me for non-payment should I return to China.

6. On 7 October 2016 the delegate refused to grant Mr DWT19 a protection visa. The delegate was not persuaded the applicant met the applicable criteria set out in ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (the Act). Mr DWT19 sought review in the Tribunal of that decision. The Tribunal hearing took place on 24 September 2019.

   THE TRIBUNAL’S DECISION ON REVIEW

7. The Tribunal’s decision is reproduced in the court book at pp 99ff. The paragraph numbers of the decision are awry, so I shall discuss particular passages of the decision by referring to the relevant page number of the court book.

8. The decision commences with an uncontroversial discussion of the criteria applicable to a protection visa. The Tribunal then recorded the evidence which was contained in the material that had already been provided, and which was supplemented by evidence the applicant provided at the hearing.  The Tribunal recorded (at p 102), amongst other things:

   (a)the applicant’s father borrowed a large amount of money from a loan shark whom the applicant could not name;

   (b)the money was borrowed to fund a speculative investment, and it was lost in the financial crisis of 2008;

   (c)the applicant said a son in China was under an obligation to pay his father’s debts, so he expected the loan shark would look to him for repayment;

   (d)the applicant did not know how much was owing on the debt; and

   (e)the applicant initially said in evidence that his parents continued to reside in the family home. When the Tribunal noted the parents did not seem to experience difficulty at the hands of creditors, the reasons record the applicant adjusting his evidence to explain his parents had moved away from their home for a while and lost all their furniture and personal effects.

9. The applicant also told the Tribunal (at pp 102-103) he would be unable to move elsewhere in China because of restrictions imposed under the Chinese household registration system.

10. The Tribunal then recorded its findings on credit. It concluded the applicant was not a reliable witness for a range of reasons set out at p 104 including:

    •The Tribunal finds the applicant’s evidence about his family moving away from the family home to avoid loan sharks to be contrived, unconvincing and difficult to reconcile with his earlier evidence that his parents did not have problems living in China. …

    •The Tribunal was concerned that the applicant’s evidence about the amount of the debt was lacking in any meaningful particulars. …

    •The Tribunal was further concerned that the applicant provided vague and inconsistent evidence about the amount of money his father borrowed from the loan sharks in 2007. …

    •The Tribunal found the applicant’s explanation about his vague and inconsistent evidence about the debt owed by his family to loan sharks unpersuasive. …

    •The applicant was also unable to adequately explain why loan sharks would try to kill him in circumstances where his father, who the applicant claims entered into the debt in 2007, is still able to live at the family home …

11. The Tribunal also noted (at p 105) the significant delay in applying for the protection visa. The Tribunal said that delay also reflected on the applicant’s credit.

12. Based on these concerns, the Tribunal concluded (at p 105) the applicant’s claims were not credible. It also found the applicant had fabricated those claims to remain in Australia. In those circumstances, the Tribunal was not satisfied there was a real chance the applicant would face serious or significant harm if he returned to China. It concluded the applicant did not satisfy the criteria in ss 36(2)(a) or (aa).

    THE APPLICATION FOR JUDICIAL REVIEW

13. The applicant was accompanied to the hearing by his wife and their baby. He was unrepresented although he was assisted by an interpreter. He had not brought any of the papers (such as the court book and the minister’s written submissions) with him. They had been left at home. Mr DWT19 said he nonetheless had a general level of understanding of the contents of those documents. I note the documents were served on him several years ago, so he had ample opportunity to acquaint himself with their contents. I allowed time for the applicant to re-read the submissions provided by the minister with the assistance of the interpreter.

14. I explained the role of the Court at the outset of the hearing and discussed the process of judicial review again before I asked the applicant for his submissions. I made clear the Court’s role was limited to determining whether the Tribunal’s decision was affected by material jurisdictional error. I pointed out that if his application for review was successful, the Court had the discretion to quash the decision and remit it to the Tribunal for reconsideration according to law. I made clear the Court could not actually grant the applicant a visa. He said through the interpreter that he understood that.

15. Mr DWT19 said he was not involved in the drafting of the grounds of review. He said the grounds included in the application were prepared by a lawyer whose name he could not remember. The lawyer had been referred by an unnamed friend.

16. I then asked Mr Burnham, who appeared for the minister, for his submissions before turning to the applicant. The applicant had almost nothing to say about the grounds, and he was unable to articulate any coherent argument that suggested material jurisdictional error. When asked where he thought the Tribunal’s decision had gone wrong, he was unable to say anything beyond asserting the Tribunal should have reached a different outcome.

    IS THERE A MATERIAL JURISDICTIONAL ERROR APPARENT IN THE TRIBUNAL’S DECISION?

17. I will deal with each of the four grounds of review and make some other observations.

18. The first ground of review baldly asserts the Tribunal failed to afford procedural fairness.

19. The want of particulars makes it difficult to understand this ground. Mr Burnham argued there is nothing apparent on the face of the decision which would suggest the Tribunal had failed to meet its procedural fairness obligations. He noted the Tribunal had issued a timely invitation to attend a hearing, and the applicant duly attended. The applicant was provided with an opportunity (both in advance of the hearing and again at the hearing) to provide evidence and submissions. He answered questions from the Tribunal. Many of the questions appeared to go to the applicant’s credit but he could have been in no doubt that credit was an issue before the Tribunal: that much should have been obvious from the delegate’s decision. The Tribunal did not rely on any fresh material for the purposes of its decision that had to be put to the applicant pursuant to s 424A of the Act. It relied instead on the applicant’s evidence and the material he had already provided.

20. I asked the applicant to explain in his own words whether there was any unfairness in the way the Tribunal conducted the hearing. He was not able to assist me.

21. It is clear the Tribunal complied with its procedural fairness obligations. There is no substance to this ground of review.

22. Mr DWT19 also contended, in the second ground of review, the Tribunal should not have found the applicant’s family had not been threatened as they still live in China.

23. The Court must be cautious when dealing with disputes over factual findings. It is the Tribunal’s job to make findings of fact. The Court is generally limited to scrutinising the Tribunal’s fact-finding process, although the Court may intervene where a factual finding (or a conclusion which relies on that finding of fact) is unreasonable. I infer the applicant in this case contends the finding of fact was unreasonable, but there is nothing to that complaint. The Tribunal’s scepticism of the applicant’s claim is well-supported by reference to his inconsistent evidence on the topic (recorded at p 102). This ground of review must fail.

24. The third ground of review contends the Tribunal erred when it found the applicant must know the exact amount borrowed by his father if he were genuinely concerned about harm at the hands of loan sharks.

25. That contention misstates the findings of the Tribunal at p 104 which I reproduced above. The Tribunal concluded the applicant’s uncertain evidence on this issue reflected on his credit because it was likely he would have known the details of the debt if he genuinely felt he might be obliged to pay it. This finding about an anomaly in the applicant’s story provided part of the basis for an adverse credit finding. There was nothing unreasonable in the way the Tribunal treated this evidence. The Tribunal’s assessment of the evidence was properly open to it. This ground of review cannot be sustained.

26. The last ground of review was a contention that the Tribunal failed to provide the evidence in support of its findings.

27. I should say at once this ground as drafted misconceives the role of the Tribunal. An applicant for a protection visa is responsible for specifying all the particulars of their claim, and they must provide sufficient evidence in support: s 5AAA of the Act. The Tribunal’s role is to conduct a statutory review, which includes providing a statement of reasons that meet the requirements in s 430 of the Act.

28. The Tribunal made findings on material questions of fact; these were set out in the statement of reasons which I have already discussed. It also referred to the evidence which it used to make those findings. It made its decision and explained its reasons for reaching that decision. The applicant was unable to explain how the decision was unreasonable in any respect. I am not satisfied there was any shortcoming in the Tribunal’s explanation of its findings.

    CONCLUSION

29. After discussing the grounds of review with the applicant, I asked him to explain in his own words where the Tribunal went wrong. He was unable to assist me, and I am unable to identify any error more serious than a formatting problem in the written reasons.

30. The applicant in this case was found not to qualify for a protection visa because the Tribunal did not believe important parts of his account. That adverse credit finding explained why it was not satisfied with the claims; given those shortcomings in the evidence, the Tribunal concluded the applicant could not satisfy the criteria in s 36(2) of the Act which govern the grant of protection visas. The Tribunal’s decision to that effect was not affected by any material jurisdictional error. The application for judicial review must therefore be dismissed.

    COSTS

31. That leaves only the question of costs. Costs are typically (but not inevitably) awarded against an unsuccessful party in proceedings like these. Mr Burnham asked for an award of costs in this case because the minister had incurred expense in defending the proceedings. If those costs are not met by the applicant, they will have to be met out of public monies. The applicant was unable to offer any reason why it would be inappropriate to make a costs order in this case.

32. Mr Burnham said the minister asked for a fixed amount of $5,000. He pointed out that amount was less than the amount indicated on the Court’s scale. He said it reflected the amount of costs actually incurred. Mr DWT19 was unable to assist me about an amount that should be awarded.

33. I am satisfied costs should follow the event, and I will make a fixed costs order in the amount of $5,000.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

Associate:

Dated:       24 February 2025