EBS18 v Administrative Appeals Tribunal

[2019] FCCA 3147

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBS18 & ORS v ADMINISTRATIVE APPEALS TRIBUNAL & ANOR [2019] FCCA 3147

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)

Cases cited:

N/A

First Applicant: EBS18

Second Applicant: EBT18

Third Applicant: EB418

First Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: PEG 418 of 2018

Judgment of: Judge Vasta

Hearing date: 9 October 2019

Date of Last Submission: 9 October 2019

Delivered at: Perth

Delivered on: 9 October 2019

REPRESENTATION

Solicitors for the Applicant: LILY CHEN & ASSOCIATES

Counsel for the Second Respondent: Ms Oliver

Solicitors for the Second Respondent: AUSTRALIAN GOVERNMENT SOLICITOR

ORDERS

1. That the name of the Second Respondent be varied to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the Applications filed 7 August 2018 and amended on 30 October 2018 be dismissed.

3. That the First Applicant pay the costs of the Second Respondent fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 418 of 2018

EBS 18

First Applicant

EBT18

Second Applicant

EB418

Third Applicant

And

ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 10 July 2018 the Administrative Appeals Tribunal (“the AAT”) affirmed a decision by the delegate not to grant the First Applicant EBS18, his wife, EBT18, and their infant child, EB418, protection visas.  On 7 August 2018 the Applicants filed an originating application in this Court asking this Court to review that decision. 

2. The three Applicants are citizens of Malaysia.  The First and Second Applicant arrived in Australia on 5 November 2014.  They were holders of visitors’ visas that were electronically provided.  The child arrived in Australia on 23 April 2015 as a holder also of a visitor visa.  The Applicants made the protection visa applications on 28 January 2015, a little over two months after arriving in the country, and, once their daughter was reunited with them, an application was made for her as well, so that the three of them form a family unit.

3. The claims for protection have been summarised very well by the Tribunal.  They are that the main applicant, the First Applicant, had a company in Malaysia.  That company consisted of two mobile phone shops, and it did have shareholders.  The First Applicant said that the shareholders embezzled all the money, and took out loans, including from loan sharks, in the name of the company.  The First Applicant said that he hesitated about reporting the matter to police.  The loan sharks then came to the shop and the other person, his business partner, disappeared.  As a consequence, the First Applicant was asked to pay the debt to the loan sharks. 

4. The First Applicant said he was threatened, so he went to the bank to get a loan to pay some of the money back to the loan shark.  He claimed that the money that he repaid was not sufficient, so the loan sharks sent people to the shop every day to make trouble and took away all the mobile phones. 

5. He said that they also poured red paint on the door of the shop, and they threatened to harm the First Applicant and his family.  The First Applicant said that he had no choice but to sell the company, but it took over a month to do so.  He said during that time, the loan sharks kidnapped his wife and child, that is, the Second and Third Applicants, and he was forced to pay back the money.

6. He then said that he went to the police, but they claimed that he had no evidence, and he was forced to do whatever the loan sharks asked.  He said that his wife and children were finally let go.  The loan sharks continued to ask the First Applicant if he needed money.  They went to his home and shop every day, and the debtor called as well for money.

7. He said that the wife, that is, the Second Applicant, could not live under the pressure, and attempted suicide many times.  He said that he, the First Applicant, was beaten up every two days, and that he and his wife eventually decided to run.  They borrowed a car from a friend, and they hid everywhere.  The First Applicant said it was midnight one night that he had to wash his clothes with the 10 month old daughter, and he was found by the loan sharks and beaten badly.  He sustained injuries.

8. It was then he decided to send the child away to an aunt who lived far away, and he and the Second Applicant, came to Australia.  He said that the loan sharks continued to look for him every day, and they were waiting at the front of the home and told his family that they will find the First Applicant and his wife, and that they will kill them, and the First Applicant and his wife were very scared about this.  The daughter’s claims, realistically, are part of the claims that are made by First and Second Applicants. 

9. The delegate, the Tribunal noted, did not find that the First Applicants’ version was credible.  The Tribunal itself held three separate hearings involving this matter.  The first hearing was on 19 September 2017, the second hearing on 11 December 2017, and the third and final hearing on 15 February 2018, and the Tribunal delivered the decision in July 2018.

10. With regard to the initial hearing, the Tribunal noted that immediately prior to that, the Applicants confirmed that their documents and claims were accurate, and they submitted what purported to be copies of five Malaysian police reports in support of the application, and the matter was adjourned. 

11. At the second hearing, the Tribunal said they addressed a number of concerns to the First Applicant about his application and why he had answered certain questions in the negative.  Those questions had to do with his movement.  The answers given in the application forms indicated that he had lived in the same address for, as it were, most of his married or adult life, and that he had not ventured overseas before, whereas the true fact was that he had actually lived in Singapore for some eight years, and then there was a period where he was travelling somewhat regularly between Singapore and Malaysia. 

12. His explanations to the Tribunal were that he had not understood those questions.  He accepted that his answer to the questions on the form regarding those matters was not correct, and that the Tribunal said that they found that he provided incorrect information in his application.  He explained to the Tribunal that someone had helped him to complete his forms, and that this is why he did not properly understand the questions.

13. The Tribunal asked him why he had declared in his forms that he had completed his forms by himself and without assistance if he did actually receive assistance.  He said that, although someone helped him, they were not very good.  The Tribunal followed this further and the First Applicant then said that someone had assisted him to apply for protection in the first place for no charge, but then the same person charged him two and a half thousand dollars to manage his appeal to the Tribunal, but that person did actually nothing. 

14. The Tribunal asked the First Applicant why he had not divulged this arrangement either at the first hearing or earlier in the second hearing, and that it had taken some detailed questioning from the Tribunal to obtain this new information.  The Tribunal told the First Applicant that his lack of straightforwardness about basic facts reflected poorly on his credibility and the credibility of his claims.  The First Applicant said he did not understand the Tribunal’s questions when these had been asked at both hearings.  The Tribunal pointed out that the questions had been asked through a qualified and acceptable interpreter.

15. The Tribunal found that the evidence and information in connection with the application of protection was vague, incorrect and misleading.  The First Applicant again stated that he relied upon an agent to complete his paperwork.  The Tribunal asked for the details of the agent and the First Applicant talked about who he had used.  The Tribunal noted that no business of that name appeared on the register of migration agents, and the telephone number given by the First Applicant did not answer when it was dialled by the Tribunal.  The Tribunal found, then, that the First Applicant was not assisted by a registered migration agent.

16. Going to his actual claim, the Tribunal asked the First Applicant for the business structure of the mobile phone business that was operated in Malaysia.  The First Applicant said he was in business with a person called Yong Hong Kit from 2012.  He and his business partner operated two mobile phone shops between them.  He, the First Applicant, arranged for the purchase of stock and supplies, and the business partner managed the marketing and selling of the merchandise. 

17. The First Applicant said that he had nothing to do with the business finances or the banking.  He said that after a few months of operation, his partner embezzled the available funds of the business, and disappeared, leaving business debts owing to illegal moneylenders, known as ah longs.  According to the First Applicant, at this point the businesses were targeted by those moneylenders. 

18. The Tribunal noted that when questioned about the details of the events, the First Applicant’s evidence varied, particularly as to dates and the nature of the harassment.  The Tribunal pointed out that this lack of clarity about such important events reflected poorly on the credibility of those claims.  The First Applicant stated that this was due to the effluxion of time and the frailty of memory, but the Tribunal pointed out it was illogical to suggest that partners in a business would not share access to the business’s financial records, particularly when the First Applicant had been responsible for purchasing on behalf of the business.

19. The Tribunal questioned why the First Applicant had not reported the embezzlement of the funds to the police, and he said that his business partner had begged him not to do this and promised to repay him.  The Tribunal pointed out that the failure of the business partner to repay any money, and then to disappear, was inconsistent with that evidence.  The Tribunal found that the failure to report matters to the Malaysian police in 2013 was more consistent with the events not happening than it was consistent with the events having happened. 

20. The Tribunal noted also, that the First Applicant claimed to face escalating harassment from the criminal thugs associated with the moneylenders, including the abduction of the wife and child from the shopping centre, but none of that was reported by the First Applicant to the Malaysian police.  The Tribunal found it was not logical or credible to suggest that a citizen of Malaysia would suffer the type or duration of harm claimed by the First Applicant without seeking any assistance from the Malaysian police.

21. The Tribunal said that they were unable to ascertain from the First Applicant with any precision how much money was borrowed on behalf of the business from the illegal moneylenders.  The Tribunal asked the First Applicant why he had not provided records to substantiate the particular debt, and he said that he did not think it was important, and that he had lost paperwork during his departure from Malaysia.  The Tribunal put to the First Applicant that he had about two years to obtain this information, but he still did not appear to have any statements showing what amounts were owing, if any. 

22. The Tribunal then highlighted that it had a problem with the First Applicant leaving the infant child in Malaysia despite having gone to the trouble of obtaining a passport for that child less than one month before both parents departed the country.  The Tribunal noted that the First Applicant’s evidence that he had sent his daughter to a distant village to live with a relative because he and the Second Applicant were leaving for an unknown country without much money. But given his past history of international travel, and the nature of the claimed threat to himself and his family, the Tribunal noted that departing the country without the child in such circumstances was not logical unless there was actually no perceived threat to the child in Malaysia.

23. At the third hearing, the First Applicant turned up firstly with a document that purported to be a demand from Standard Chartered Saadiq Berhad Credit Centre.  That was dated 7 November 2017, and it sought repayment of loan moneys in the amount of 56,317.59 in Malaysian currency. 

24. The Tribunal, at the beginning of the third hearing, summarised the evidence that was provided at the second hearing, and again highlighted the numerous concerns with that evidence that I have already spoken about, and invited the First Applicant to comment on those matters, especially as to the fact of leaving the infant child in Malaysia. 

25. The First Applicant said that he had a view that it had been safe to leave the child in the care of an aunt in Malaysia for the period.  The Tribunal put to the First Applicant that the conduct might appear to a reasonable mind to be more suggestive of a lack of fear of serious or significant harm than suggesting that there was genuine fear of serious or significant harm in Malaysia on the part of the Applicants.  The First Applicant said that it was easier to hide an infant child in Malaysia than a family of three. 

26. The Tribunal said that, while it accepted that this may be the case, when one looks at what the claims were, that is, that the infant daughter would be deprived of a normal home life by the daily harassment that was being inflicted on the family unit, the actions of the First and Second Applicant were not consistent with that premise.  The Tribunal noted that all members of the family unit held a valid Malaysian passport prior to the departure of the First Applicant and his wife, and that placing a child into foster care for an indefinite period of time in a country in which both the mother and father claimed that they were unable to live without a well-founded fear of persecution, was not consistent with the claims that the infant daughter was being deprived of a normal home life by the daily harassment that was being inflicted upon the family unit.

27. The Tribunal then looked at all of the country information that had been discussed by the delegate and asked the First Applicant to respond to that information.  The First Applicant said that not everything that happens in Malaysia was reported in the media, but he said that the Malaysian police were probably corrupted by the moneylenders, and that his own experience suggested that the moneylenders acted with impunity in Malaysia. 

28. The First Applicant pointed out the five copies of reports to Malaysian police made by his brother about the “ah long” harassment.  The Tribunal did look at that evidence to this extent – the reports were not translated, and were in the original Malaysian language, but the Tribunal compared the evidence that the First Applicant had not gone to the police but that his brother had. 

29. The First Applicant says that these five police reports show that the police did nothing, but there is no evidence that the police did nothing.  What the Tribunal noted was that the First Applicant was making far more serious claims than he said that the brother was making, yet the brother went to the police but the First Applicant did not, and that this did not seem to be consistent with what the First Applicant was actually saying. 

30. The Second Applicant then spoke of being abducted by these illegal moneylenders.  She had said that she was in a shopping centre.  There were not many people around.  She did not scream out or call for help but complied with a request by what she called “a few guys” who told her to come with them.  She said that she and the daughter were held against their will for two days until the Applicant husband arrived and collected the two of them.  The First Applicant said he was told to pay 12,000 Malaysian currency to secure the release of the wife and daughter, and thereafter to pay 40,000 Malaysian currency to a particular ah long. 

31. The Tribunal considered that it was illogical for a person who was abducted from a shopping centre with their infant child not to call for help or otherwise resist, and failing that, to subsequently report the matter to police.  The Tribunal indicated that it found that it was illogical to suggest that the First Applicant, the father, would not seek the assistance of police either when his spouse and infant child were being held hostage, or on securing their release, given that the First Applicant knew the location where they were being held.

32. The Tribunal looked at the document that the Applicants had produced, that were supposedly a demand for repayment of 56,317.59 Malaysian currency and noted that the letter purports to be dated 7 November 2017, but it settles a demand amount at 30 October 2014. There is nothing as to what interest had been calculated between 30 October 2014 and 7 November 2017. 

33. It also says in the letter that the debt would be assigned to a debt collection agency if not paid within seven days, but there was no supporting evidence that any further recovery action had been taken against them.  The Tribunal invited the Applicants to make submissions as to why any weight should be placed on the document in those circumstances, and there were no submissions made in response to that invitation.

34. The Tribunal, in their reasons, spoke of the country information, and juxtaposed the applicants’ evidence that the “ah longs” operate in Malaysia without interference from Malaysian police, with the available country information that says that the government is not unable or unwilling to protect persons in the Applicants’ situation.  The Tribunal concluded that it would prefer the country information over the subjective assessment of the Applicants with respect to this aspect. 

35. The Tribunal then spoke of the concerns it had with the credibility of the Applicants, and came to the conclusion that the Applicants do not generally hold a well-founded fear of persecution for the essential and significant reason of being members of a particular social group indebted to illegal moneylenders, and that such a persecution would apply to them if they were to return to Malaysia, or for any other reason now or in the reasonably foreseeable future.  The Tribunal said that they have considered each of the integers of the Applicants’ claim for protection together with the evidence to the Tribunal individually and then cumulatively. 

36. The Tribunal then looked at the complementary protection criteria and found that there were no substantial grounds for believing as a necessary and foreseeable consequence the Applicants being removed from Australia to Malaysia that there was a real risk that they would suffer significant harm now or in the reasonably foreseeable future. 

37. Given those conclusions, the Tribunal affirmed the decision not to grant the applicants a protection visa. 

38. In the amended originating application that was filed on 30 October 2018, there were four grounds of application.  They are:

    1.  The First Respondent failed to take relevant information into consideration, in particular, the Applicants' family members reported Ah Longs to the Malaysian police five times but no protection had been given to them.

39. This ground has no merit because there was no evidence that there had been no protection given to the Applicants. The information, in as far as the report to the Malaysian police, was not translated or interpreted, so the Tribunal could hardly take all of that relevant information if it was not in an acceptable form. It is good to see that the First Applicant has actually considered those matters and decided not to press this ground.

1. The second ground is:

   2.  The First Respondent ignored the protest of the Wife during the hearing and threatened to throw her out the hearing room who complained about the competency of the interpreter that affected the answers of the Applicants, which were critically relevant to the protection claim. The particulars of this ground will be detailed in the wife's affidavit.

2. There is no independent evidence before this Court that the wife protested about the adequacy of the interpreter, and was rebuked and threatened with a disbarring of her from the hearing room.  The Applicant could have put such evidence before the Court in the form of a transcript of the proceedings or even the audio, but did not do so.  There may be financial reasons as to that, as has been explained by Ms Chen today, but nevertheless, it is not before this Court.

3. What the court can say from the affidavits of the husband and the wife is that the husband said in his affidavit:

   The worst situation we were in was the second hearing the first respondent conducted.  The interpreter was not good enough to translate the questions to us and our answers to the member.  My wife protested during the hearing, but she was asked not to say anything, otherwise she would be thrown out from the hearing room.  The hearing record is the piece of evidence proving what I’ve said in this affidavit.

   Unfortunately, the hearing record was not put before this Court by the Applicants.

4. The wife in her affidavit said:

   My husband does not have good English, so he did not complain about the interpreter to the member.  But I have some English, and often I noticed the interpreter got wrong or included his own understanding.  For instance, when I said, “From 2013 the ah longs started to assault us,” the interpreter said “since 2012”.  The member was upset and said the answer was illogical, because the member did not know the mistakes made by the interpreter. 

   When I put my hand up and complained to the member about the mistakes the interpreter made, the member did not listen to my complaint at all.  He further threatened if I complained again, then I must leave the hearing room.  The member miscarried the justice.  The illogical answers of my husband and myself due to the misunderstanding of the interpreter of the member’s questions had caused mistrust of the member in both of us.  The member should change the interpreter, but chose to ignore my complaints and warned to throw me out of the hearing room.

5. As I say, there is no evidence other than coming from the Applicants that this actually happened.  One would think that if the husband was giving evidence and the wife interrupted to say something of, “That is not right,” a Tribunal member may get to a point where they may feel that the wife was trying to answer for the husband.  I do not know if that is the case at all, but in a situation such as that, it would not surprise me that a member acted this way.  But again, as I say, I have no evidence of this.

6. What I do have, though, is the statement in the reasons of the Tribunal that the Tribunal member, at the beginning of the third hearing, went through and summarised what had been said at the second hearing, and also went through and summarised what he saw as the problems with the evidence that the Applicants had given at the second hearing and why this would be reasons to be affirming the decision, and invited the Applicants to comment.

7. There was no comment made to the effect that, “This was not what I said,” or, “The interpreter got it wrong,” or, “You have misunderstood what I was trying to say.”  Instead, the Applicants gave the answers that the Tribunal has spoken about in their reasons.  Even if there were some unfairness, it would seem to me that the unfairness did not deprive them of the chance to give evidence, because at the third hearing when there was a different interpreter, the Applicants were given the opportunity to correct whatever had been said at the second hearing.

8. The wife further says in her affidavit that at the hearing the interpreter made about 40 mistakes as to her husband and her own verbal testimony. 

   The mistakes of interpretation led the member not to trust us at all with what we said to him.

   The only example that the wife gives is this apparent mistake between 2012 and 2013.  When one looks at the reasons of the Tribunal, if there was such a mistake during the course of the hearing, the Tribunal member has not recorded that, and one can say it was not anything that caused him any problems with the veracity. 

9. It is trite to say that the First Applicant has the onus of showing that there has been a jurisdictional error.  Where it is that the First Applicant is submitting that there has been miscommunication and mistakes in translation, the First Applicant must show what those miscommunications were, what those mistakes were, what was it that was said to the Tribunal member which, if one looks then at a proper interpretation, would give a totally different outcome. 

10. The First Applicant has had quite some time to do this and has failed to do so.  Instead, there are simply bland statements that there were 40 mistakes.  There has not been demonstrated to this Court that any of those mistakes, if they in fact exist, were material.  It seems to me, then, that there has been no jurisdictional error that has been demonstrated in ground two.

11. Ground Three is:

    3.  The First Respondent was negligent in considering photos of red paint provided by the Applicants proving harassment and threat of Ah Longs to them and their family members in Malaysia;

12. The Applicants certainly spoke of the fact that the door to the shop had red paint applied to it.  The Applicants had given photographs of a door covered in red paint, it would seem, to the delegate, and, therefore, they were before the Tribunal.  Those photographs are reproduced in the Court book.  Notwithstanding the Minister’s submission that the door where the paint is shows a residential premises rather than commercial premises, which would undercut the story that the Applicants had given, there was no mention of the photographs in the reasons of the Tribunal.  Therefore, the Applicant submits, in that particular ground, that this was a component of the claim and, therefore, the Tribunal has not considered it. 

13. Just dealing with the written ground, it would seem to me that that does not logically follow.  The claim that paint was put on the door of the premises where the Applicant conducted his business was a claim that was considered by the Tribunal.  The Tribunal speaks of it as being part of the claim that was considered.  As long as it has been considered, it is not necessary for the Tribunal to enumerate every aspect of that claim to show that they had considered every aspect of the claim.  As long as the claim has been considered, then there has been no jurisdictional error.  That disposes of the written aspect of that, but I will come back to what was orally submitted in a second.

14. Ground Four was:

    4. The First Respondent's limited knowledge about Ah Longs and total reliance on country information caused the decision subjective and unfair to the Applicants.

15. That really is a complaint that the Tribunal preferred the country information about the moneylending practices, and what the authorities do, over that of the Applicants as to what their subjective experience has been.

16. It is trite to say that it is a matter for the Tribunal to accept what evidence it deems to be acceptable, and to reject what evidence it deems to be unacceptable.  It is open for the Tribunal to come to whatever decision it likes as long as such a conclusion is open on the evidence.  In this case simply preferring one bit of evidence over another, if that was open, does not constitute a jurisdictional error.  So that would dispose of the written aspect of that ground.

17. However, orally, what the First Applicant did was to really go through the country information that was before the delegate.  The First Applicant thoroughly analysed most of the country information to paint a picture that Malaysia is a corrupt country. 

18. The aspects in the 2014 report that the delegate had access to were mirrored in the 2018 country information, which showed that, according to surveys, Malaysia ranked 62 out of 180 countries for transparency and anti-corruption; that in 2015 there were claims that the Prime Minister had embezzled funds, and when an investigation was occurring, the Prime Minister removed his Attorney-General from office, and that these corruption claims are still being investigated.  It also showed that the government was not formally required to consider human rights reports, and could simply ignore them if they wanted. 

19. So the submission was made that corruption is deeply rooted in the Malaysian system, and if one then considers all of that evidence, one could see that what the Tribunal has done is to ignore that evidence and come down in favour of other country information that shows that the authorities are willing and able to protect citizens who have been the victims of the illegal moneylenders.

20. The argument that the First Applicant put forward would have been somewhat compelling if this were an appeal on the merits, but this is not an appeal on the merits.  This is a review of the decision.  A review on the merits is impermissible in a hearing such as this.  Again, at the risk of repeating myself, it is for the Tribunal to accept what country information it wishes to. 

21. It is clear that despite everything that had been pointed to by the First Applicant, the Tribunal and the delegate before the Tribunal had actually considered all of that country information, but had also considered the country information in those same reports that talk about what the authorities were doing about the problem of illegal moneylending and the threats of the ah longs.  It was open to the Tribunal to come to the conclusion that it had.  Because it was open, there has been no jurisdictional error.  Therefore, there is no substance in grounds three and four, and they fail.

22. There was a further ground that had been argued, and I allowed such a ground to be argued.  That was that the decision was irrational, illogical or unreasonable.  A decision will be irrational, illogical or unreasonable if the decision is one at which no rational or logical decision-maker could arrive on the same evidence. 

23. In the recitation of the facts that I have given, it is clear to me that the conclusion reached by the Tribunal was one that was open to it to reach.  If that is the case, then it cannot be said to be irrational, illogical or unreasonable. 

24. For that reason, this further ground also fails.  I have found that there is no jurisdictional error. 

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 1 November 2019