EET20 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 726

Federal Circuit and Family Court of Australia

(DIVISION 2)

EET20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 726

File number(s):	BRG 510 of 2020
Judgment of:	JUDGE VASTA
Date of judgment:	5 October 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)
Division:	Division 2 General Federal Law
Number of paragraphs:	48
Date of last submission/s:	3 August 2022
Date of hearing:	3 August 2022
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on their own behalf with the assistance of an interpreter
Solicitor for the Respondents:	Sparke Helmore

ORDERS

BRG 510 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EET20
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	5 OCTOBER 2022

THE COURT ORDERS THAT:

1.The application filed on 17 September 2020 be dismissed.

2.The Applicant 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 21 August 2020, the Administrative Appeals Tribunal (“the AAT/Tribunal”) affirmed a decision not to grant the Applicant, EET20, a protection visa.  On 17 September 2020, the Applicant asked this Court to review that decision.

2. The first time that the matter was mentioned in Court after the Applicant filed his application was on 9 October 2020.  On that date, Registrar Carlton made orders as to the filing of material.  As the matter was now part of the national migration docket, the Registrar adjourned the matter to a date to be advised by the registry.

3. On 31 May 2022, the Registry notified the Applicant and the Minister that the matter would be listed before me as a final hearing at 2.15 on Wednesday, 3 August 2022.  The notice said that the hearing would be conducted in person in a courtroom.  The Applicant was not here at 2.15 pm and my Associate both called the matter and searched the building for him.  This caused my Associate and the Minister to check their records to ensure that the Applicant had been properly notified.

4. The notice sent to him by the Registry, by my Chambers and by the Minister were all sent to the email that was the email given by the Applicant when he filed his application.  Having that information before me, I was about to conduct the hearing without the Applicant, having been satisfied that he had been properly notified.

5. To ensure that the Court had given the Applicant every opportunity, the Court then telephoned the phone number that was on the application that had been filed in this Court.  To my relief, the Applicant answered the telephone and the matter has been able to have been conducted with him on the telephone and an interpreter here in Court.

6. The background of the matter is that the Applicant is a citizen of Malaysia.  He arrived in Australia on 21 December 2014 on an ETA visa, which is equivalent to a visitor visa.  Less than three months later, on 19 March 2015, the Applicant applied for a student visa.  It appears that the Applicant did not comply with all of those conditions of his student visa, and the department cancelled the student visa on 21 January 2017.

7. The Applicant was an unlawful citizen from that day until 20 September 2017.  On that day, he lodged the protection visa application which is the subject of the present review.

8. The Applicant’s application was accompanied by a statutory declaration that was dated 4 September 2017.  On 23 February 2018, the delegate refused the application. The delegate of the Minister refused the application because the Applicant’s claimed fear of harm did not have a refugee nexus. 

9. The Applicant applied for a review of that decision to the AAT on 6 March 2018.  The Tribunal invited the Applicant to an oral hearing.  The Tribunal had before it what the Applicant’s claims were in his application and other documentation.  The claims made in the statutory declaration were as follows:

   (a)The Applicant left Malaysia in 2014 to travel and decided to study in Australia because Australia’s education system was of high quality.  His plan was to complete a diploma of business and then return to Malaysia and start his own business.  He said that in 2016, he borrowed 3000 Malaysian currency units from an Ah Long which is a loan shark.  He said that he did this so that he could pay his Australian tuition fees.

   (b)He said that he thought that he could obtain employment in Australia and pay off the debt quickly.  He said that he did not find employment straightaway and he was unable to pay the interest.  He said that he was harassed between 30 and 40 times a day by phone, with the Ah Long threatening to ruin his reputation and life if he did not repay them.  He said that he fears going back to Malaysia because he will be killed by the Ah Longs.

   (c)He said that he could not rely on the Malaysian law enforcement authorities to protect him because he was of Chinese ethnicity and he was not a Muslim.  He said that he fears that the Ah Long would burn his home or tie the doors with cable ties.

   (d)He said the Ah Long had sent pig heads to intimidate him and his family.  He said the Ah Long broke into his home and stole from his family.  He said he is afraid to let the Ah Long know that he has a family and a girlfriend in Malaysia.

   (e)The Applicant said he borrowed money from his family to repay the loan, but it was not enough.  He said he asked his family to call the police and report the phone harassment, with the hope that they can make peace.  He said that the Ah Long have contacts within the police and are able to influence the police and that is why the police have not helped.

   (f)The Applicant said that relocation within Malaysia is not possible because it would only be a matter of time before he is located, and once he is located he would be subject to cruel and inhumane treatment or torture and may be killed.

   (g)He said that someone painted the letter O, a dollar sign, a capital P and then another dollar sign (O$P$) in red to threaten his family.  He said that this means “Owe Money Pay Money”.  He said that the Ah Long found out where his parents live and they sometimes send a pig head to hang outside his family home to intimidate them.

   (h)He said that the Ah Long broke into his family’s house and robbed them.  He said these people have forced his parents to call him to demand that he return to Malaysia immediately.  He said that they threatened to burn the parents’ property and to hurt his younger brothers.  He said he fears the Ah Long would find his girlfriend.  He says that due to the violent tradition of Ah Longs he fears being harmed because he cannot clear the debt.

10. When the Applicant was interviewed by the Tribunal, his story changed.  He told the Tribunal that the loan was not taken out in 2016, it was taken out in 2014.

11. The Tribunal asked him why there was a delay of three years between his arrival in Australia and making the protection visa claim.  He said it was because his parents told him to escape Malaysia and when he arrived in Australia he met some people from Hong Kong who advised him to get a student visa so he could earn money to repay the debt and study at the same time.

12. The Applicant told the Tribunal that he did not know about protection visas at that time.  He reiterated that he had not known about protection visas when it was that he became unlawful.

13. The Applicant also told the Tribunal that the loan amount was not 3000 Malaysian currency units, it was 30,000 Malaysian currency units.  The Applicant was asked why there was such an inconsistency between his statutory declaration and what he was saying now.

14. As can be seen at CB 34, the statutory declaration was witnessed by a solicitor.  That solicitor had also been appointed as the migration agent, as can be seen at CB 29.

15. The Tribunal put to the Applicant that he used a lawyer to prepare his application and his statutory declaration.  The Tribunal said that the lawyer would have been acting on his instructions and would most likely have read back to him his claims before asking him to sign the documents.  The Applicant said that he could not remember and could not otherwise explain the inconsistency.

16. He reconfirmed that the date of the loan was 2014, and not 2016, and that it was for a business that he had in Malaysia.  He said that he borrowed money from the Hong Kong couple who had told him about student visas, but that was in Australia and that was for $5000 and that was for his tuition.  The Tribunal asked him whether he had a copy of the loan agreement.  He said that he did not, and that it was a personal matter and so was not put in writing.

17. The Applicant told the Tribunal that his repayment schedule was to be 3000 Malaysian currency units a month.  He said that he only made two repayments.  He was asked what happened when he stopped making the repayments.  He said that the loan shark went to his house and put photos of the Applicant everywhere around the house and around his neighbour’s house.  The Applicant said that the loan shark came to his workplace and harassed him there.  The Applicant did not confirm that there were 30 to 40 phone calls a day, but he did say to the Tribunal that there was daily harassment.

18. He was asked about threats that the loan shark would burn the home or send pig heads or break into the home.  The Applicant confirmed that none of those things actually ever happened.  The Tribunal noted that, in the Applicant’s statutory declaration, he had first said that he was afraid to let the lender know that he had a family and a girlfriend, but later in that same statutory declaration, he stated that the loan shark had threatened his family.

19. The Tribunal asked the Applicant how the loan shark could have found out where the parents lived.  He said that the loan shark checked out the house before the loan was approved and that the loan shark also had a copy of his identity card.

20. Whilst the Applicant said that there was continuous harassment by the loan shark, there was no evidence of that harassment that was produced.  The Tribunal confirmed with the Applicant that even though there were threats and harassment, no‑one had actually been physically hurt.  The Applicant said that he had been recently threatened on WeChat that the lender would kill him even if he was in Australia.  The Applicant told the Tribunal he received that threat about a month before the hearing.  The Tribunal asked the Applicant whether he had a copy or a screenshot of that WeChat threat, but the Applicant said he had deleted it.

21. The Tribunal reminded the Applicant of his claim that someone had painted “Owe Money Pay Money” in red and would send a pig head to hang outside the home.  The Applicant confirmed that such did not happen and it was an exaggeration.  The Applicant said that all that happened was that they put up posters of him around the house, but he had no photos or other evidence that supported his claim that this was what happened.  He also said that his house had not been broken into, but his family were interrupted.

22. He said that whilst the loan shark has not hurt anyone, he did come to the house and splash gasoline around the house.  The Tribunal asked when this took place, but the Applicant said that he could not remember.  The Tribunal asked the Applicant why this was not in his protection visa application, and he said that he could not remember.

23. The Tribunal then discussed country information with the Applicant.  That information detailed quite comprehensively what the Malaysian government has done in relation to the problem of illegal moneylenders.  This included a government organisation that resolves loan shark debts by renegotiating the terms with loan sharks, it includes enacting criminal offences for illegal moneylending, it includes actively investigating and prosecuting illegal moneylenders, and it includes reacting quickly to the changing tactics of loan sharks.

24. The country information noted that there had been trouble with corruption within the police service, but this was not such as to undermine the ability and confidence of the police to act in such matters.

25. The Tribunal then asked the Applicant to comment on all of that country information.  The Tribunal asked the Applicant about the financial counsellors set up by the government.  The Applicant said that he was aware of this, but all of the counsellors were Ah Long or connected to the moneylenders.  The Tribunal showed the Applicant again that these were quite independent of moneylenders and the Applicant said he was not aware of that.

26. The Tribunal asked the Applicant whether he had reported his concerns to police.  He said that he had never made any complaint to police.  When asked why, he said that there are illegal activities everywhere and that police do not help with personal matters.

27. The Tribunal considered whether the Applicant’s Chinese ethnicity could play any part in his fear.  The Tribunal again expressed its concerns in relation to the inconsistencies between what was in the application and statutory declaration and what the Applicant had said to the Tribunal.  Again, the Applicant said he could not remember what happened at the time and otherwise had no explanation for the discrepancies.

28. The Tribunal said that they found that the Applicant’s evidence was vague and uncertain.  The Tribunal noted that there was no corroborative evidence of any description to support his claims.

29. The Tribunal also noted there was a very significant delay in making the protection claim.  The Tribunal noted the Applicant said he preferred to seek a student visa and borrow money to seek that rather than make a protection claim that was of little to no cost.  The Tribunal noted again that when the Applicant’s visa was cancelled, he remained unlawful for eight months before making an application for protection.

30. The Tribunal was satisfied that the Applicant had fabricated his claims in relation to owing money to an illegal moneylender or to anyone in Malaysia and all claims flowing from that had also been fabricated.

31. The Tribunal had to consider whether the Applicant, if he did have a genuine fear of harm, belonged to a particular social group.  The Tribunal considered whether he would be perceived to be a member of a group such as debtors or borrowers unable to make repayments.  Another group he may belong to is borrowers unable to make repayments who are threatened by debt collectors.

32. The Tribunal acknowledged that if the Applicant’s claims had been accepted, that he could be perceived to be a member of the group and that the group would be defined by a shared fear of persecution.

33. In this way, the Tribunal differed from the delegate by finding that the application enlivened the refugee criterion.  The delegate had found that there was not a social group that enlivened the refugee criterion.  The delegate had found that there was not sufficient nexus to allow a decision‑maker to consider whether the Applicant was a refugee.  By making the finding that the Tribunal did, it allowed itself to consider whether the Applicant was a refugee.

34. However, having regard to all of the evidence that was before the Tribunal, the Tribunal did not accept that he had ever owed money to a loan shark and so he did not meet the criteria for a refugee.

35. The Tribunal then considered the complimentary protection criteria.  The Tribunal concluded that because the Applicant had not been the victim of a loan shark, there was nothing that could allow the Applicant to meet the criteria of complementary protection.  The Tribunal said though that for the sake of completeness, it had considered a scenario where the Applicant did have a loan with an illegal moneylender.

36. Having regard to all of the country information, the Tribunal was not satisfied there was a real risk that the Applicant would suffer significant harm for any of the reasons he claimed if he returned to Malaysia.  For those reasons, the Tribunal found that the Applicant had not met the criteria for complimentary protection. 

37. Having come to those two conclusions, the Tribunal affirmed the decision not to grant the Applicant a protection visa.

38. There were four grounds upon which the application was based.  The first was that the “Tribunal considered irrelevant facts which affected the Tribunal’s unfavourable decision”.  There were no facts that the Tribunal was prohibited from considering that the Tribunal actually did consider.  The Applicant has not identified any irrelevant facts that would fit this description.  For this reason, ground one fails.

39. Ground two was that “Complimentary protection was not applied properly”.  As I have explained in my recitation of the Tribunal’s reasons, the Tribunal went above and beyond what it needed to in considering complimentary protection.  Having made the finding that there was no loan ever entered into with an Ah Long, there was no evidence that could have enlivened the criteria for complimentary protection. But the Tribunal did more than that and actually considered whether there would be any danger if the Applicant had actually entered into a loan agreement with a loan shark.  There is no merit in ground number two.

40. Ground three is that the “Tribunal focused on facts which was adverse to me but did not consider the totality of my case.”  During the course of oral discussion, I summarised the case that the AAT considered to the Applicant.  I asked if that was what the Applicant wanted to present and he agreed that this was his claim.  Having recited in some detail the reasons for the Tribunal, it cannot be said that the Tribunal did not consider the totality of the case for the Applicant.  For that reason, ground three fails.

41. Ground four is that the “Tribunal did not correctly understand what happened to me when I was in Malaysia.”  Again, having recited what the Tribunal had done, it is very difficult to say that the Tribunal did not correctly understand what happened to the Applicant in Malaysia.  In any event, it seems to me that this ground is really an attempt for an impermissible merits review.  For this reason, ground four also fails.

42. The Applicant explained to me during the course of the hearing that these events had taken place a while ago.  It is true that he signed the statutory declaration and the application for protection nearly five years ago.  He said that he remembers that a lawyer did not present what he wanted him to present.  He said that the lawyer presented a story that was not true.  He said that was the reason that the AAT did not give him a visa.

1. The Applicant did not go as far as that during the course of the AAT hearing.  The Applicant did not present any evidence from the lawyer, whose name is clearly visible in both the application and the statutory declaration, to explain why she presented a tale that the Applicant did not give her to present.  The Applicant has had since October 2020 to do so.  This was made clear by Registrar Carlton when she made her orders.

2. The Applicant submitted to me that he had his life threatened in Malaysia, but that the AAT did not take it into consideration.  He said that the Tribunal underestimated the seriousness of the threat.  He said that there may be some cases where the police can protect and do things for people who are victims of loan sharks.  He said that the police would not protect him in his case.  He said that they would only intervene if he got into trouble.

3. The Applicant made the claim that the loan sharks have people in Sydney and that is why he moved to Brisbane.  He said that if his life was not threatened, he would never have come to Australia in the first place.  All of those statements that are made really go to the fact that the Applicant is not satisfied or happy with the decision that the Tribunal made.

4. As I said to the Applicant at the beginning of the hearing, I am not interested in what the decision was and why the decision was made.  I was only interested in how the decision was made.  All of these things that the Applicant has pointed out go to what the decision was that was made and why the decision was made.  In other words, they are attempts at impermissible merit reviews.

5. The final submission of the Applicant was that he had been in Australia for a very long time.  Again, I understand this, but it does not show or illustrate any jurisdictional error made by the Tribunal. 

6. I have looked very carefully through the decision of the Tribunal and I have not been able to identify anything that could come close to being a jurisdictional error.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       5 October 2022