EBQ17 v Minister for Immigration

[2018] FCCA 3882

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3882

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to provide a copy of its statement of reasons within the prescribed time – whether the Tribunal misinterpreted and misconstrued relevant claims – allegation of bias or bad faith – whether the Tribunal erred in failing to consider claims without reasonable cause – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.430, 430A

Cases cited:

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Palme (2003) 216 CLR 212

SZTAL v Minister for Immigration & Border Protection (2017) 91 ALJR 936

Applicant: EBQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2814 of 2017

Judgment of: Judge Smith

Hearing date: 16 November 2018

Date of Last Submission: 16 November 2018

Delivered at: Sydney

Delivered on: 16 November 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms S He, Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2814 of 2017

EBQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of the Administrative Appeals Tribunal made on 7 August 2017.  The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of Malaysia who last arrived in Australia on 23 March 2016.  She lodged an application for a protection visa on 21 June 2016.  The applicant claims in effect, in support of her application for a protection visa that she borrowed money from loan sharks and that she was beaten and threatened by them when she could not pay the debt due to high interest rates. 

3. The applicant did not seek help from the police because “they say such matters are personal” and also the police are afraid of loan sharks.  She said that the loan shark is angry now that she has run away and can find her even if she relocates within Malaysia and if she returns there she will have no work and no money, and still owes money to the loan shark. 

4. On 7 September 2016 a delegate made a decision to refuse to grant the applicant a protection visa.  The applicant applied to the Tribunal for a review of that decision. 

5. The applicant attended a hearing conducted by the Tribunal on 21 July 2017.  During that hearing the applicant made a further claim that the loan shark had detained her for four days and forced her into prostitution, however she managed to get away and stay with a friend for three months before returning to Australia. 

6. The Tribunal made its decision on 7 August 2017 affirming the decision of the delegate.  The reasons for the Tribunal’s decision are set out in [14] to [21] of the first respondent’s submissions, which I will adopt for the purpose of this judgment (without alteration):

   14.The Tribunal accepted that the applicant was a citizen of Malaysia but found she had “not been truthful about her claims”. The Tribunal accepted that the applicant may have lost her job in Malaysia and was upset about the prospect of returning after securing employment in Australia but was not satisfied she owed money to a loan shark or that a loan shark had harmed her. The Tribunal found the applicant had “fabricated her claims in order to be granted a visa to remain in Australia”. It identified four reasons to support its conclusion.

   15.First, the Tribunal did not find credible the applicant’s reasons for not including the “very serious claim” of forced prostitution in her PV A. It did not accept she was advised to mention this claim only at the hearing when her PVA included claims of harassment and beatings from the loan shark. It found she introduced this claim “to strengthen her claim for protection”, and raised these concerns with her at the hearing.

   16.Secondly, the Tribunal did not find it credible that the applicant failed to report “such a serious incident” to the police, particularly as country information indicated the Malaysian police were generally considered to be a professional and effective force that took action against loan sharks and gangs that resorted to violence or extortion to recover borrowed money. It also found her reasons for not doing so were “differing” and “contradictory” because she claimed she could not go to the police as the loan shark’s brother was a police officer but also conceded that the police might have helped her if they had the time. In addition, it found her reasons were inconsistent with her written claims that the police regarded these matters as personal and were afraid of loan sharks.

   17.Thirdly, the Tribunal found the applicant failed to provide a satisfactory explanation as to why the promissory note was written in English and, as it put to her at the hearing, its contents were illogical. The Tribunal was not convinced that a loan agreement for 15,000RM would stipulate monthly payments of that same amount and also found it “problematic” that the applicant had brought the promissory note with her to Australia but failed to tender it as evidence to the Department.

   18.Fourthly, the Tribunal did not find it plausible that the loan shark went to such extreme measures to enforce payment from the applicant but took no action against her family in her absence, and was “not persuaded’ that the loan shark would not have pressured her family for repayments.

   19.The Tribunal was therefore not satisfied the applicant faced a real chance of serious harm for reason of being indebted to a loan shark.

   20.The Tribunal also did not accept the applicant’s claim that she would experience economic hardship if she returned to Malaysia and found she would not suffer serious harm due to the economic and/or political situation in Malaysia or from being unemployed. In support, it found the applicant had family in Malaysia with whom she could live and that she had good prospects of finding employment given her age, employment history and country information that indicated the Malaysian economy was “relatively strong” and the unemployment rate in 2015 was low.

   21.For the reasons it identified, and having also considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that the applicant satisfied the refugee or complementary protection criteria for the grant of a Protection visa.

   (Emphasis in original)

7. The applicant now seeks judicial review of the Tribunal’s decision.  The applicant raises four grounds in her application and a number of grounds in written submissions filed by her.  The applicant appeared unrepresented today and made submissions on her own behalf. 

8. Before dealing with each of those grounds and submissions, it is important to say something about the jurisdiction of this Court. 

9. The role of the Court is limited to determining whether the Tribunal acted within the scope of its authority.  While it is not possible to state precisely what the scope of the Tribunal’s authority is, or to describe accurately each of the errors that it might fall into in purporting to exercise that authority, it is possible to state as a general principle that it is not the Court’s role to determine whether the Tribunal has made a wrong finding of fact.  Thus, it is not for the Court to enter into a consideration of whether it disagrees with findings made by the Tribunal. 

10. Simply put, it is within the Tribunal’s authority to make findings of fact, so long as those findings are based upon logically probative evidence and inferences drawn from that evidence, and so long as the Tribunal has provided the applicant with the procedural fairness required by the Migration Act 1958 (Cth). For that reason, it is not the Court’s role to determine whether what the applicant told the Tribunal was true or not. That was, subject to questions of procedural fairness and rationality, entirely a matter for the Tribunal.

11. I return now to the grounds in the application. Grounds 1, 2, and 4 in the application each assert that the Tribunal fell into jurisdictional error by failing to send the applicant a copy of its statement of reasons. Section 430 of the Act requires the Tribunal to prepare a statement of reasons once it has made its decision. Section 430A requires the Tribunal to notify the applicant of a decision by giving them a copy of the written statement prepared under s.430 and it must do so within 14 days.

12. In this case the decision was made on 7 August 2017.  By letter dated 8 August 2017 the Tribunal notified the applicant of its decision.  However, it did not enclose a copy of the statement of reasons in that letter.  That mistake was realised at some point and, on 24 August 2017, the Tribunal wrote to the applicant attaching a copy of the statement of reasons.  Thus, the Tribunal failed to comply with its obligation to send the statement of reasons within 14 days of the date of the decision. 

13. The problem for the applicant is that sub-s.430A(3) provides that a failure to comply with s.430A does not affect the validity of the decision. In other words, in light of that provision, this is an error made by the Tribunal which did not affect its authority to make the decision. Similar provisions were considered by the High Court in Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Palme (2003) 216 CLR 212. For those reasons, grounds 1, 2 and 4 of the application must be rejected.

14. Ground 3 in the application is that the respondents misinterpreted and misconstrued the applicant’s relevant claims.  I will assume that the reference to “respondents” is a reference to the Tribunal. 

15. The applicant has not explained which claims were misconstrued by the Tribunal but it is not hard to determine.  That is because her claims fell within a very short compass. She claimed that she feared harm from the loan sharks and that the police would not protect her.  However, it is clear that the Tribunal rejected that claim as having been fabricated:  see [26] and [31].  Thus, far from misinterpreting the claim, the Tribunal rejected it.  Thus, the third ground in the application must be rejected. 

16. In her written submissions, the applicant raises a number of other grounds.  On the second page of the submission, in the first paragraph, the applicant says that the Tribunal got the impression that the applicant had embellished her claims.  She says that the Tribunal made an error in coming to this wrong conclusion.  As I have explained, the Court cannot consider for itself whether the applicant was telling the truth.  It cannot engage in merits review.  For that reason, this argument must be rejected. 

17. In the second paragraph, the applicant refers to the way in which the Tribunal dealt with the promissory note. The applicant says that the Tribunal was concentrating on finding fault with her verbal submissions rather than genuinely trying to understand her claims; that I take to be an allegation of bias or bad faith. Both are serious claims that must be clearly established. The only evidence of what occurred at the Tribunal hearing is what is set out in the Tribunal’s reasons for decision and I set out, in particular, [24] and [25] of the Tribunal’s reasons.

    24.The Tribunal referred to the Promissory Note tendered by the applicant as evidence of her loan. Noting the document is written in English the Tribunal asked the applicant whether she understood the content of the document when she signed it. The applicant replied in the affirmative and said she knew she had to pay monthly payments of 1,500 RM. The Tribunal questioned why the document is not signed by the lender and the applicant replied that there is another copy held by the loan shark which is signed by both parties. When asked if she brought this document with her to Australia the applicant said she did. When asked why she did not submit it with her written application she said she was told to provide it at hearing.

    25.The Tribunal pointed out the document indicates that the total amount borrowed is 15,000 RM but that payments of 15,000 RM were to be made on the 15th of every month. While the document goes on the outline the monthly interest payments required the Tribunal pointed out that this appears nonsensical because the first monthly payment of 15,000 RM would have settled the debt. The applicant expressed surprise about this and reiterated she was required to pay 1,500 RM per month. The Tribunal put it to the applicant that it is concerned about the veracity of the document because it is not signed by the lender, the content seems illogical and it has only been produced at a late stage in the proceedings. The applicant replied that she was told to sign the document and cannot obtain the other copy held by the loan shark. The Tribunal also questioned why the applicant did not use the 10,000 RM payout received from her employment to settle her debt with the loan shark instead of using that money to travel to Australia in 2015. She replied that she took that decision because she thought she was going to be granted a work permit which would have allowed her to repay the debt more quickly.

    (Without alteration)

18. Those paragraphs do not support the allegation of bias.  They do not establish that the Tribunal had made up its mind and was unwilling or unable to change its view.  That conclusion is not changed by the fact that the Tribunal ultimately did not accept the applicant as being truthful.  That is because, as explained in the balance of the Tribunal’s reasons, it came to its final view on the basis of all the material before it.  This argument must be rejected. 

19. In the last four lines of the second paragraph on the second page, the applicant argues that the Tribunal failed to understand that the promissory note had been signed by both the applicant and the loan shark and was held by the loan shark until the full amount was paid.  That assertion may have been something which, if accepted, could have led the Tribunal to accepting the applicant’s credibility however, once again, as I have explained, findings of fact such as this were matters for the Tribunal.  It gave its reasons for credibility at [27] through to [30] of its reasons.  Accordingly, this contention must also fail. 

20. In the last full paragraph on page 2 of the submissions, the applicant argues that the Tribunal failed to consider that the applicant was not educated enough to understand the contents of her protection visa application questions.  The applicant’s education was referred to at [18] of the Tribunal’s decision. However, that education was not relied upon by the applicant as an excuse for why she failed to put certain matters in her original claim.  The applicant’s arguments in that respect are set out at [21] of the Tribunal’s reasons. 

21. As it was not a matter relied upon by the applicant and not an obvious reason for failing to make a claim, the Tribunal was under no obligation to consider it. 

22. In the first full paragraph on page 3 of the submission, the applicant argues that the Tribunal fell into error in determining without a logical and probative basis that her evidence was false.  The Tribunal explained the reasons for its credibility finding and thus its decision at [27] through to [30] of its statement of reasons. Each of those matters were probative of a finding about credit and do not support the applicant’s assertion in this ground.  For that reason, the contention must fail.

23. In the second-last full paragraph on page 3, the applicant says that the Tribunal’s finding about the connection between the family members and the loan shark was unreasonable, unfair and unjust. It is unclear precisely what is meant by this, but I note again that the Tribunal rejected all of the applicant’s claims and gave its reasons for doing so.  In those circumstances, the assertion that the Tribunal’s finding was unreasonable is no more than a strong disagreement with its conclusions.  That contention must then be rejected.

24. The next contention, in the last full paragraph on page 3, again asserts the Tribunal refused the applicant’s claims without reasonable cause. This contention is also rejected for the same reason as the previous assertion.

25. In the final paragraph on page 3, the applicant says that the Tribunal failed to give the applicant the opportunity to comment on any doubts or adverse information the Tribunal had.  The Tribunal did not appear to have any adverse information before it, and while the Tribunal is not generally under any obligation to inform an applicant of any doubts it has about his or her evidence, it is clear that the Tribunal did so in this case: see [21] through to [25] of its reasons. 

26. In the first partial paragraph on page 4, the applicant again asserts in the fourth-last line, that the Tribunal was biased and that the Tribunal drew a false inference from the evidence.  I have already dealt with similar claims made earlier in the submission and these too will be rejected for the same reasons. 

27. In the first full paragraph of page 4, the applicant asserts first, that the Tribunal disregarded relevant considerations, and secondly, reached a decision having regard to irrelevant considerations.  The applicant submitted that these two matters show that the Tribunal acted in bad faith. 

28. Having regard to the reasons of the Tribunal, I reject this assertion. First, the Tribunal had regard to the applicant’s claims and evidence. Secondly, it rejected them as fabrications. In light of that, this ground can only be an expression of disagreement with the Tribunal’s conclusion and must be rejected as an attempt to re-agitate the merits of the claim before the Court.

29. In the second full paragraph on page 4, the applicant says that the Tribunal failed to consider the question of complementary protection and erred by not considering the requirement of intent contained in the definitions of “serious harm” for the purposes of the complementary protection criterion. 

30. This ground is based upon the decisions of the Full Court of the Federal Court and the High Court in SZTAL v Minister for Immigration & Border Protection (2017) 91 ALJR 936. However, the submissions have no bearing on the facts of this case and appear to have been lifted in their entirety from another case that might have given rise to such an issue. Briefly, the question of intent in the definition of “serious harm” never arose because the Tribunal rejected all of the applicant’s factual claims, and it was on that basis that the Tribunal dealt with the complementary protection criterion at [40] of its reasons.

31. In the first full paragraph on page 5 of the submissions, the applicant asserts that the Tribunal could have given, in certain instances, the benefit of the doubt to the applicant and fell into error in dealing with irrelevant issues. There is no obligation on the Tribunal to give the applicant the benefit of the doubt and it is clear that the Tribunal came to a firm view about the applicant’s credibility. For that reason, it was under no obligation to consider whether the claims might have been true in assessing the future possibility of harm upon return to Malaysia: Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

32. In the final paragraph of page 5, the applicant makes two arguments that appear to be related.  The first is that the Tribunal failed to consider the applicant’s claims in relation to her race, religion and social group. The second is that the Tribunal failed to give the applicant a fair hearing.  It may be accepted that the failure to consider a claim made by an applicant might constitute denial of a fair hearing; however, in this case there are two reasons why the ground cannot be made out. 

1. First, the Tribunal rejected all of the applicant’s factual claims, and secondly, the applicant never made a claim based upon her race, religion and social group.  Her claims were based upon a loan she said that she had taken from a loan shark and the consequences of her failing to repay interest on that loan.  None of the contentions in the applicant’s written submissions are made out. 

2. At the hearing, the applicant made oral submissions. First, she said that the matter should be sent back to the Tribunal because the Tribunal did not believe her, and that the only reason she did not say everything in her application was that she was advised not to do that and that she could say her claims at an interview.  That may well be the case however, it goes only to whether or not the applicant ought to have been accepted as a truthful witness and, as I have already said, that is a matter for the Tribunal and not for the Court. 

3. Secondly, the applicant essentially repeated the claim that she had made in support of her protection visa application.  I take her submissions to be that those claims are, in fact, truthful.  Once again, that may well be the case, however it is not a matter for the Court to decide those matters. 

Conclusion

1. For those reasons, nothing submitted by the applicant in her oral submissions established any jurisdictional error in the Tribunal’s decision. Given the limited scope of the Court’s power on review of the Tribunal’s decision and the fact that the applicant has not established that its decision is affected by jurisdictional error, the application must be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       15 January 2019