DXZ20 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 843

Federal Circuit and Family Court of Australia

(DIVISION 2)

DXZ20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 843

File number(s):	BRG 483 of 2020
Judgment of:	JUDGE VASTA
Date of judgment:	1 August 2022
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth): s 424A
Division:	Division 2 General Federal Law
Number of paragraphs:	26
Date of last submission/s:	1 August 2022
Date of hearing:	1 August 2022
Place:	Brisbane
Counsel for the Applicants:	The Applicants appearing on their own behalf with the assistance of interpreters
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

BRG 483 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DXZ20

First Applicant

DYA20

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	1 AUGUST 2022

THE COURT ORDERS THAT:

1.The Application filed on 26 August 2020 be dismissed.

2.The Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $6,500.

3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

THE COURT NOTES THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

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
(Ex Tempore)

JUDGE VASTA

1. On 27 July 2020, the Administrative Appeals Tribunal (“the AAT/Tribunal”) affirmed a decision not to grant the applicants, DXZ20 and DYA20, protection visas.  On 26 August 2020, the Applicants asked this Court to review that decision. 

2. The background to the matter is as follows.  DXZ20 is a citizen of Taiwan born in May 1988.  She came to Australia on 26 November 2016 on a working holiday visa.  DYA20 is also a Taiwanese national, having been born in September 1988.  The application for protection visas was made on 16 August 2020.  In her application, DXZ20 said that she sought protection in Australia because she feared harm from gangsters or loan sharks in Taiwan.  She commented that she was the guarantor for a loan taken by another person who subsequently disappeared.  She indicated that a gangster collector came and forced her to pay a big amount under threat that they would sell her away if she did not comply. 

3. DYA20 did not make claims in her own right.  She relied on the fact that she was the de facto partner of DXZ20 and therefore a member of a family unit.  Her claims, therefore, either rose or fell on acceptance of the claims of DXZ20.

4. The delegate made their decision on 2 May 2018, and the Applicants made their application to the AAT three days later.  On 29 June 2020, the AAT sent an invitation to DXZ20 to attend a hearing on 24 July 2020.  The notice said that the hearing would be by telephone.  The Applicants accepted that invitation.  The Tribunal had earlier said in their letter of 7 May 2018 that:

   If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.

5. On the matters contained in the court book, it appears that apart from making the application to the Tribunal and accepting the invitation, there was no more material given to the Tribunal from the Applicants.

6. The Tribunal had to first consider whether DYA20 was part of a family unit of DXZ20.  The Applicants said to the Tribunal that they had been in a relationship for about seven years and that they came to Australia together.  The Applicant indicated that they want to marry but have not married at this stage pending resolution of their visa status in Australia.  The Tribunal put to the Applicants that it understood that same-sex marriage was legalised in Taiwan in 2019.  The reason the Tribunal gave for its understanding was country information that it had from October 2019.  The Applicants indicated they were aware of that fact.  The Tribunal accepted that DYA20 and DXZ20 were in a genuine de facto relationship and that they were a family unit.

7. The Applicant told the Tribunal about how she came to owe money to a loan shark.  She said that she and a friend suggested that they open a pearl tea shop together.  He told her that they would need 2 million Taiwan currency units to set this shop up.  The Applicant said that she only had 500,000 in savings, and because the male friend did not have any capital, they would need to borrow 1.5 million currency units.  The Applicant said that she believed her friend was going to borrow the money from a bank, and so she gave him her identification details to help with the setting up of the loan.  She said that when the business started to falter and they were having trouble paying back the loan, her friend told her at this time that he got the money from a loan shark rather than from a bank.

8. She said that they tried to borrow money to pay back what they owed the loan shark, but the interest rate was too high, and they were not able to repay it.  She said that people were sent by the loan shark to come to the shop and demand they repay the money.  The friend then fled, and because the loan shark had the details of the Applicant, the loan shark came to her for the repayment of the whole sum.  Even though in her written application the Applicant indicated that these people had physically hurt her, she did not make that claim to the Tribunal.  She said that the loan shark instead went to her parents’ house, and they splashed the house with paint and smashed things.

9. She said that her father then reached an agreement with the loan shark where he paid 20,000 currency units a month to repay the loan, but he did not have to pay any interest.  The Applicant told the Tribunal that her father still had five payments of 20,000 currency units to make.  She told the Tribunal that she had concerns when she lodged her protection visa application in August 2017, because the money had not been paid back at that time.  The Tribunal asked her if she still had concerns about returning to Taiwan now, given that it is three years since she lodged her application and there was little of the debt left.  The Applicant said to the Tribunal in reply that she thought she would be okay if she went back to Taiwan now.

10. While the Tribunal had some credibility issues about the tale regarding the loan shark, they noted that the Applicant conceded that when she lodged the application, she felt she needed help from this visa, but now that the debt was about to be cleared, she understood that a protection visa was not applicable to her. 

11. She was then asked if there were any other matters she wished to raise, and she said that she would like to thank Australia for making it possible for her to be able to repay the money. 

12. When DYA20 was asked if there were any other matters that she wished to raise, she said that when she came to Australia, their purpose was to pay back the money that DXZ20 owed and to save some money.  DYA20 said that in the three years in which she had had the bridging visa, she had been able to pay back money in Taiwan and also been able to save some money. 

13. Given the state of that evidence, it was unsurprising that the Tribunal affirmed the decision not to grant the Applicants protection visas.

14. There were three grounds of application noted on the originating application filed in this Court. Grounds 1 and 3 were complaints that the Tribunal did not put to the applicants information upon which it relied in making its decision. The applicants, who appeared before me today in person aided by two interpreters, did not push grounds 1 and 3. The obligations that the Tribunal had pursuant to s 424A and s 424AA were not engaged, because there was no relevant information that was required to be put to the Applicants. It would seem, on my reading of the Tribunal’s decision, that the only information that was not already in the application of the applicants was the information about the legalising of same-sex marriage in Taiwan. That information was not used by the Tribunal as part of the reason to affirm the decision not to grant visas, but it actually was put to the Applicants, even though it did not need to be because it was country information.

15. The Tribunal relied on the Applicant’s oral evidence and the written evidence the applicant had given to the Tribunal. None of that information raised a section 424A obligation. The Tribunal had met all of its natural justice and procedural fairness obligations. Grounds One and Three do not illustrate any jurisdictional error, and they therefore fail.

16. Ground 2 was the only ground that was actually argued by the applicant.  That ground is:

    The Tribunal asked inappropriate questions and made wrong test.

    The applicant said to me that the inappropriate questions were about same-sex marriage.  She explained that the AAT asked, “Is it true same-sex marriage is allowed in Taiwan?”  She said that no further questions were asked on that issue.  She said that she was not given an opportunity to expand on the culture that surrounds same-sex marriage in Taiwan.  She said:

    To the outside world, it may appear that Taiwan is open because it passed laws that legalised same-sex marriage, but while people came out and celebrated this milestone event, and the world looked on, the reality was something that was very different.

17. She said that the employment market is very unfriendly to gay people.  She said that gay people still suffer bullying and discrimination in the workplace.  She said that she, herself, had suffered this.  She said that if she returned to Taiwan, her parents would do whatever they could to make sure that she became “normal”.  She said that when she told her mother about her sexuality and, in effect, came out, she was put under a form of house arrest by her parents.  She said that she had terrible memories of her mother using scissors to cut her hair and hurting her in that process.  She said that her parents would never let her and DYA20 live together as they do in Australia.  She said that if they do return, they will be separated by their families.  She said that the families will treat the two of them as they did before they came to Australia.  She said that if they tried to run away to another part of Taiwan, the parents would inform the police, and the police would go and arrest them and bring them back to their families.

18. The second applicant said that because the AAT hearing was by telephone, that they did not have an opportunity to elaborate on any of these claims.  She said that the AAT only asked about loan sharks.  When what was said in paragraphs 38 and 39 was noted, and asked what she wanted to say about that, DYA20 said that she thought that they were only limited to talk about loan shark issues.  She said that the reason they were talking about loan sharks was because the loan sharks were the immediate threat at the time of the hearing.  She reiterated that she and DXZ20 have been in a relationship for a long time and that same-sex marriage was not the law of Taiwan when they began their relationship nor when they came to Australia.

19. The problem for the applicants is that they made their claims for protection nearly five years ago, and this revelation today is the first time that such claims have ever been made.  It is trite to say that the Tribunal is not required to consider a claim that was not actually made.  This claim was not raised when the application was first filed.  This claim was not raised at any time during the interview with the delegate.  This claim was not raised before the hearing at the Tribunal, notwithstanding the Tribunal invited the applicants to make any claims or to give any further evidence that they had, and the claim was not made or even hinted at during the hearing before the AAT.  The AAT is not required to consider a claim which does not fairly arise on the evidence.

20. The Applicants argue that the AAT did not ask any other questions after they had asked whether the Applicants understood that same-sex marriage had been legalised in Taiwan.  As I say, there was no claim made, and the questions that the AAT asked were sufficient for their purposes. 

21. But the Applicant told the Tribunal that she thought it would be okay if she went back to Taiwan now that the outstanding debt would soon be paid.  One would have thought that this would have been the perfect opportunity to say to the Tribunal that “even if the debt is paid back, we would still have problems going back to Taiwan, because of our same-sex relationship”. 

22. The Applicant herself said that when she lodged the application, she felt she needed help from this visa, but now that the debt is about to be cleared, she understood that the protection visa was not applicable to her.  One would have thought that this was the perfect opportunity to say that the protection visa was still needed even though the threat of the loan sharks was not as great.

23. When the Applicant was asked whether there were any other matters she wished to raise, that too would have been the perfect opportunity to raise the problems of a same-sex relationship in Taiwan.  Further, when DYA20 was also asked if there were matters that she wished to raise, that too would have been the perfect opportunity to raise problems with a same-sex relationship in Taiwan. 

24. I have raised these four points not to criticise the Applicants in any way, but to point out that this was simply not a claim that was raised on the evidence and to illustrate why it is that the Tribunal did not commit any jurisdictional error in the way they asked questions about same-sex marriage. 

25. There has been no jurisdictional error illustrated in any of the three grounds nor in any other aspect of the decision of the Tribunal. 

26. For this reason, I dismiss the application with costs in the sum of $6500.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       1 November 2022