EDX21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 618
Federal Circuit and Family Court of Australia
(DIVISION 2)
EDX21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 618
File number(s): PEG 248 of 2021 Judgment of: JUDGE VASTA Date of judgment: 20 July 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 422, s 424A Division: Division 2 General Federal Law Number of paragraphs: 59 Date of last submission/s: 20 July 2022 Date of hearing: 20 July 2022 Place: Perth Counsel for the Applicant: The Applicant appearing on their own behalf with the assistance of an interpreter Solicitor for the First Respondent: Australian Government Solicitor ORDERS
PEG 248 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EDX21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
20 July 2022
THE COURT ORDERS THAT:
1.The application filed on 17 November 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $2,500.
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
JUDGE VASTA
On 1 November 2021, the Administrative Appeals Tribunal (“the AAT/Tribunal”) affirmed the decision not to grant the Applicant, EDX21, a protection visa. On 17 November 2021, the Applicant asked this Court to review the decision of the Tribunal.
The matter had a somewhat chequered history before the Tribunal. The Applicant came to Australia on a tourist visa. She arrived here on 15 September 2016. On 8 November 2016, she made the application for the protection visa.
That claim was considered then by the Minister, who, on 23 March 2017, refused to grant the protection visa to the Applicant. The Applicant immediately sought a review of that decision in the Administrative Appeals Tribunal.
The first of the hearings was on 16 February 2018. The hearing did not finish, and, whilst it was attempted to be rescheduled, it would seem, about three times, the Tribunal member became ill/indisposed and could not complete the hearing.
The Tribunal was reconstituted and the Applicant attended a further hearing before a different member of the Tribunal on 24 September 2020. The AAT member had a recording of the 16 February 2018 hearing and summarised to the Applicant what he considered to be the salient points of that hearing.
The Tribunal did not complete the hearing on that date and adjourned the matter to the following year, 2021. On 26 February 2021, the Applicant provided a written submission and some further supporting information in relation to the application.
The Tribunal resumed the hearing, which was, in effect, the third hearing, on 4 March 2021.
Following the hearing, the Tribunal sent a letter to the Applicant, pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”), asking her to comment on what the Tribunal considered to be inconsistencies in her evidence. On 24 March 2021, the Applicant responded to the invitation to comment, and then it was not until 1 November 2021 that the Tribunal affirmed the decision, giving its written reasons.
In short compass, the Applicant’s claim is that she is a Malaysian citizen. She is of Chinese ethnicity.
Her initial protection visa claim was that she had invested money in a multilevel marketing business. She convinced a few of her friends and relatives to invest in her network. She said that they made a small profit first and tried to increase their investment. The Applicant then borrowed money from a loan shark to invest in this scheme, but this scheme was a pyramid scheme and it collapsed.
The Applicant said that she lost all of her investment and she was unable to repay the loan to the loan shark. She said that she was actually beaten by her creditor and the creditor chased her for money and threatened her and her family.
She said that, if she were to return to Malaysia now, she would be harmed by the loan shark. She said that the loan shark told her not to report the matter to police or they would hurt her family. She said that she could not move to another part of the country because the loan sharks have gang members throughout the country.
At the first hearing, the Applicant said that she could not recall the name of the business that was the multilevel marketing business that she invested in. She said that she was just sending money to a person who was the person who would try to earn money from it. She said that she could make a profit by earning 20 per cent when she recruited one person, but the amount depended on how much was invested. She was asked how much profit she had earned, and she said it was a bit over 1000 Malaysian currency units.
She said she borrowed 8000 Malaysian currency units from the loan shark. The Tribunal asked her about the terms of the loan and she said she had not paid it off and that the interest was still piling up, but there was no deadline for paying off the loan and she paid a little bit every month still. She said that her initial investment was 2000 Malaysian currency units which she lost when the scheme collapsed. She said that she did not report this to the authorities because she thought it would be regulated by the government.
At the second hearing, the Applicant told the Tribunal about her family situation. She said that her parents had been divorced and that she and her brothers had lived with her mother. One of the brothers married and the sister-in-law also lived with them. She said that, prior to coming to Australia, she had been working in a shop selling telephone parts. She said that she still sends money home occasionally.
She said that she had borrowed money from a cousin to come to Australia in the first place and had repaid him about 2000 Malaysian currency units. She said that there was a woman called Eileen Chen who helped her complete her application for the visa. She was a woman that she had met at the backpackers who did not accept any money for the assistance that she gave the Applicant. She said that it was Eileen who told her that she, the Applicant, could stay in Australia legally if she applied for a protection visa.
She talked a little more about the pyramid scheme that she had invested in. She said that she had talked three of her friends to also invest money in the scheme. She said that because her friends lost money, she felt she had to think of ways to return the money. This is why she borrowed money from a loan shark so that she could repay them.
She said that the loan was of high interest and she could not pay it back. She said the loan shark was a boyfriend of her friend. She said that she did not know who was running the pyramid scheme but a friend called Alvin had brought her into it. She said that she had invested 3000 Malaysian currency units once and she had earned interest on the investment. Sometimes it was 100 to 200 currency units, other times, 700 to 800 currency units, but it was irregular. She said if she introduced friends, she could earn a commission. She said that that commission was three to five per cent on their investment, and this was separate to what it was that she earned herself.
She said that she realised the scheme was a scam when, after some time of getting money, she did not receive money, and that her friends kept asking her for money because they were not getting any money. She was asked then about the terms of the loan and she said that she had to pay interest of 500 currency units a week. She said that she had paid 1500 currency units of interest and capital on one occasion. She then detailed the dealings that she had in trying to pay the loan.
The Tribunal asked her if she reported these threats to the police and she said that she had been warned not to report it to the police. She said that she soon left Malaysia and went to Australia because of these matters and that she had not heard anything else from them. She said that six months after she came to Australia, the loan sharks approached her mother and asked the mother where the Applicant was. The mother told them that she was overseas but did not tell them that she was in Australia.
The Tribunal asked if these loan sharks had approached them since, and she said in 2018 they went and then once in 2021 before the Chinese New Year. She said that the loan shark asked the same question on both occasions, which was when could the Applicant pay them the money. The Tribunal asked if they did anything else and the Applicant said no. The Tribunal asked why, if the loan sharks have been trying to enforce the debt, they did not seek money from her family in the years which had passed since she had taken out the loan. The Applicant responded that it was because her family could not pay them.
The Tribunal discussed with the Applicant why it is that she sought “refugee protection” and she said that the harm that she feared was motivated and directed at her because of her race. She said because she is of Chinese ethnicity; the Malay police do not treat Chinese ethnics well. She said:
I believe that I will be persecuted by the Malaysian authorities, especially the police force. It is well known that the police force is corrupt and bias against non-Malays. This may be the reason why the Chinese are involved in unlawful activities like illegal lending, gambling and gangs. Most loan sharks are of Chinese origin. Indians are also involved in these activities as both the Chinese and Indians are economically and politically disadvantaged.
The Tribunal then reaffirmed what the harm was that the Applicant feared upon return to Malaysia. She said that it was that the loan sharks would force her to work for them. The Tribunal asked if there was anything else that the loan sharks would do to her and she said that they would get her and would make her work for them. The implied meaning is that she would have to work in the sex trade for them.
The Tribunal noted a number of inconsistencies that the Applicant had given to them in her evidence. These were the subject of the post-hearing letter by the Tribunal that was sent pursuant to s 424A of the Act. Those matters are summarised at paragraph 91 of the Tribunal’s reasons and there is no need for me to read those into the record. At paragraphs 93, 94 and 95, the Tribunal reproduces the relevant portions of the Applicant’s response to that s 424A information.
The Tribunal then considered country information. The country information about loan sharks is detailed in the 2021 DFAT report. The country information speaks of the existence of loan sharks and noted that authorities tend to be unsympathetic towards individuals who have access to loan shark services, regarding them as having participated in an illegal practice. The practice of money lending in this way is illegal. However, the loan sharks advertise their services publicly, but police do actively investigate and prosecute illegal money lenders and their actions are reported regularly in the Malaysian media.
The country information indicates the police have made several recent high profile arrests and investigations of syndicates and have undertaken major operations to investigate and prosecute loan sharks. Police have the ability to visit, enter, inspect or search premises without a warrant if they are looking at loan sharks. The country information indicated that police and the judiciary are reasonably effective at dealing with illegal money lending and that they are able to afford a degree of protection from this illegal practice. The country information suggested that the police would take action if the Applicant reported being harassed or threatened by an illegal money lender.
The Applicant had said to the Tribunal, when this was put to her, that she did not report this to the police because the loan shark warned her not to, and she was worried that the police would be seriously against her. The Tribunal put to her that, given that she said she was worried she would be seriously harmed regardless because she could not repay the debts, it would seem sensible to go to the police, notwithstanding her concerns, given the alternative. The Applicant said that if police took serious legal action there would not be so many loan sharks.
The Tribunal looked at other country information, including that which was given to them by the Applicant. The Tribunal looked at the allegation that the Applicant had made that she was treated worse, or would be the subject of persecution, because she is a Chinese Malay. Again, the Tribunal had regard to quite a deal of country information.
When looking at the issue of fear of harm from loan sharks and criminal gangs, the Tribunal made the conclusion that the Applicant’s claims were not accepted to the satisfactory level. The Tribunal considered that the Applicant had credibility issues and her explanation for the inconsistencies was not credible. The Tribunal was concerned that the claims to fear harm on the basis of Chinese ethnicity and a fear that the loan sharks would force her into sex work were not raised until after the initial hearing with the Tribunal.
The Tribunal said that there was no satisfactory explanation as to why those claims were not raised in the initial application for protection, or when the Applicant was making her case before the delegate of the Minister.
The Tribunal was also of a view that the claims that the Applicant was at an ongoing risk of serious or significant harm from loan sharks was not consistent with the fact that the family of the Applicant continued to live in Malaysia in the same home without facing a similar risk. The Tribunal considered that the fact that the Applicant’s family had faced no threats or instances of harm suggests that the loan sharks were not attempting to enforce a debt against the Applicant. The Tribunal said that the Applicant would accordingly not be at risk of serious or significant harm from them on return to Malaysia.
The Tribunal found the account of events regarding the loans to be both inconsistent and implausible. The Tribunal did not accept that the Applicant, if it were that she truly believed that she was at risk of serious or significant harm from the loan sharks, would not go to the police, even given her misgivings about their integrity. The Tribunal found that it was implausible that the Applicant would not seek the assistance of authorities to avoid that harm, even in circumstances where she lacked confidence in the ability of the authorities to protect her.
The Tribunal did not accept the claim, which was made very late, that the fear also stemmed from her being a Chinese Malay. This claim, as was noted, did not come until, in effect, the eleventh hour and had never been made at any previous occasion. The country information did not support any claim that the Applicant will be denied police protection because of her ethnicity. The Applicant conceded that she was not being targeted by the loan sharks due to her ethnicity because the loan sharks themselves were Chinese. This was another reason why the Tribunal did not accept the Applicant’s reasoning for not reporting the matter to the police.
The Tribunal also considered the fact that the Applicant was able to borrow money from her cousin to fund her travel and living expenses in Australia. The Applicant had told the Tribunal that several weeks after she was unable to make weekly payments of 500 currency units, her cousin loaned her 4000 currency units to come to Australia. When she was asked how she supported herself, she said that her cousin sent her 1000 currency units a month.
Given that the original loan amount to the loan sharks was 8000 currency units, and the Applicant had already made repayments of 1500 currency units, the Tribunal did not accept that the Applicant would not have at least attempted to use or borrow money from her cousin to make repayments to the loan sharks if she believed herself to be at risk of serious or significant harm from them. If it were that she actually believed that she was at risk of serious or significant harm from the loan sharks, and she was fearful of approaching the police for assistance, there was no reasonable explanation as to why she would not have been able to borrow money from her cousin to repay that debt rather than to travel to Australia.
The Tribunal did not accept that the loan sharks would still be looking for her.
For all of these reasons, the Tribunal did not accept that the Applicant had established that there was any basis on which it could be satisfied that she faced a real chance of suffering serious harm in Malaysia from a loan shark, associated gangs, Malaysian police or any other person, now or in the reasonably foreseeable future.
As far as her claims about discrimination because of her Chinese/Malay ethnicity, the Tribunal looked at the country information. It concluded that she did not face a real chance of serious harm or significant harm on the basis of her ethnicity from Malaysian authorities or any other person.
The Tribunal then looked at the complementary protection criteria. For many of the reasons that had already been detailed, the Tribunal found that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, that there was a real risk that she would suffer significant harm now or in the reasonably foreseeable future from any person or for any reason.
For those reasons, the Tribunal affirmed the decision not to grant the applicant a protection visa.
The application proceeded upon three grounds that were detailed in the originating application. The grounds really talk about changed circumstances of the Applicant. Ground one is:
1)I have an Australian born male child born on 14 September 2021 and the child has the right to stay in Australia with his mother to be cared for. The lives of the Australian child and his mother will be in danger if we are both returned to Malaysia. My son may not be able to travel as he does not have a Malaysian travel document being born in Australia.
The child was born during the time that the Tribunal was considering its decision. The Tribunal had no information before it that the child had been born, or even that the Applicant was pregnant. The true situation is the child does not have a right to stay in Australia. The child is not an Australian citizen. The child has the same nationality as the parents of the child. But because this was not a matter that was before the Tribunal, it cannot be the basis of any ground that the Tribunal acted in error, let alone a jurisdictional error. Therefore, that ground failed.
The second ground is:
2)The father of the child is awaiting the decision by Australia on his protection visa application. He also needs to be with us as he is the sole breadwinner of the family. If he is returned to Malaysia, his life will also be in danger.
There was no information at all before the Tribunal that there was a partner involved in the life of the Applicant. As this was not before the Tribunal, it can hardly be said to constitute a jurisdictional error by the Tribunal. For that reason, this ground also fails.
Ground three is:
3)I was not represented by a lawyer at the hearing and hence I did not receive relevant and appropriate legal assistance. I was denied procedural justice in this complicated case. I believe I need pro bono legal assistance as I do not have funds to seek legal representation.
The fact of no legal representation is a, sometimes, misguided belief that people have a right to legal representation when they appear before Courts or Tribunals. There is no right to be represented in these hearings.
The fact that there is no representation does not mean that there has been a lack of procedural fairness. For there to be a lack of procedural fairness, there has to be a breach of the provisions in Part 7 of the Migration Act 1958 (Cth), and in particular, s 422 and following, because those sections are an exhaustive list of the rules of natural justice and procedural fairness that apply to these protection visa hearings. Legal representation is not one of those.
The Applicant today, who has appeared unrepresented but assisted by an interpreter, has iterated that the reason she did not get legal representation was that it was too expensive. That may be so, but it is not a denial of any procedural fairness, and it does not bespeak of any jurisdictional error. That ground also fails.
In the Applicant’s affidavit, which was filed with her application for review, the Applicant said this at paragraph 6:
6)I also wish to state that at the time of the AAT hearing on 4 March 2021, I did not have a child born in Australia. Hence AAT did not have knowledge of my son’s birth at the time. I also did not know I was pregnant at the time of the hearing. I realised my pregnancy shortly after the AAT hearing. I was probably pregnant around January 2021 but became aware of my pregnancy after the hearing in April 2021. According to the AAT some of the statements I made at the hearing may not be consistent and at times contradictory. I wish to apologise for this as I was not feeling well at the time of the hearing. This may well be due to my pregnancy. I was confused at times during the hearing. At the time I had to leave my home and look for a new place [omitted] due to money shortage. I was under a great deal of stress!
7)In view of what I have just said I believe that I did not get procedural justice or fairness at the hearing. AAT was not aware of my stressful psychological situation at the time.
The Applicant reiterated this in her oral submissions before me this morning. She said that she was not aware that she was pregnant during the hearing on 4 March 2021. She said that she was not feeling well that day but she thought that it was just nerves. She said she did not tell anyone that she was not feeling well because she had no reason to believe that it was anything other than ordinary illnesses. She said that she had not seen a doctor because she did not have Medicare, so she still went ahead with the hearing but said that she was not focused.
I asked the Applicant, having regard to the very thorough way in which the AAT summarised what occurred in the hearing, could she tell me what it was that she now realises she did not say properly because of the issues that she had on that day regarding her health, wellbeing and pregnancy.
The only matter that she could point to was that she believed that the AAT misunderstood what she was saying about the returns on the pyramid scheme. This was where the Tribunal believed that she had said that she was getting 20 per cent interest, but later on said that she was getting three to five per cent interest.
However, when one looks at the letter that was sent pursuant to s 424A on 10 March 2021, it specifically talks about this inconsistency. At CB 176 on the second dot point, the Tribunal has asked the Applicant, or pointed this aspect out to the Applicant:
You told the Tribunal on 16 February 2018 that you made a profit from the multilevel marketing business/pyramid scheme earning 20% by recruiting one person but the amount depended on how much was invested. However, you told the Tribunal on 4 March 2021 that you earned 3-5% for each investor you recruited to the scheme.
The answer, given by the Applicant to the Tribunal, is reproduced at CB 181. Midway through that page, the Applicant explained that she said that if she recruited one person into the scheme she got about 20 per cent as a bonus. This was an incentive to recruit more people. It was a one-off payment given to her from the top people:
However, the interest I got from investing in the pyramid scheme was 4 to 5%, paid every month. The next time I recruit another person I will again get a bonus of 20%
This was the exact explanation that the Applicant gave to me today as to what she would have said if it were that she was more focused. It is clear that this explanation was actually before the Tribunal and it was not something that the Tribunal did not consider.
She also told me today that she did not go to the police because the police are corrupt. She said that they are related to the loan sharks, and because of that relationship, her life would be under even greater threat if it were that she reported this to the police who were related to the loan sharks.
This aspect was well and truly considered by the Tribunal in detail at paragraphs 120 to 123 of their reasons, and as summarised by me when I gave the history of what the Tribunal had done in relation to the claims of the Applicant. This aspect then does not reveal any jurisdictional error.
I have looked very thoroughly at the decision of the AAT in this matter. I have not been able to discover any other matter that could give rise to a jurisdictional error. I am comforted in this conclusion by the submission of the Minister that they, too, have conducted their own independent review of the decision and also have not found any matter that could be considered giving rise to jurisdictional error.
Having come to that conclusion, I dismiss the application with costs fixed in the sum of $2,500, and I will change the name of the Minister.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 5 October 2022
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