Epu17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 322

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EPU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 322  

File number(s):	MLG 2258 of 2017
Judgment of:	JUDGE YOUNG
Date of judgment:	7 April 2022
Catchwords:	MIGRATION LAW - judicial review of the Tribunal’s decision to refuse the applicant a protection visa - where the applicant is a Malaysian citizen - where the applicant fears persecution from illegal money lenders - where the Tribunal formed an adverse view of the applicant's credibility - where the Tribunal formed the view the applicant's evidence was illogical or inconsistent or both - Court satisfied those findings were open to the tribunal
Division:	Division 2 General Federal Law
Number of paragraphs:	31
Date of hearing:	7 April 2022
Place:	Darwin
Counsel for the Applicants:	Mr Overend
Solicitor for the Applicants:	Ms Khawaja of WLW Migration Lawyers
Solicitor for the Respondents:	Ms Ward of Sparke Helmore Lawyers

ORDERS

MLG 2258 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EPU17

First Applicant

EPV17

Second Applicant

AND:

MINISTER FOR MULTICULTURAL AFFAIRS, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	7 APRIL 2022

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to the Minister for Immigration, Citzenship, Migrant Services and Multicultural Affairs.

2.The application be dismissed.

3.The applicant pay the first respondents costs in the sum of $5,000.00.

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 YOUNG

1. This is an application of judicial review of a decision of the Tribunal made on 18 October 2017 to affirm a decision of the delegate made on 4 July 2016 to refuse the applicant a protection visa.  The second applicant is the first applicant’s de facto partner but she does not make any separate protection claims of her own.  The applicant is a Malaysian citizen.  He claims to have a well-founded fear of persecution from illegal money lenders in Malaysia as a result of unpaid debts to those illegal money lenders. In the decision of the Tribunal, they are referred to as Ah Longs.

2. The applicant said he had been beaten and threatened with harm.  He said he fears to return to Malaysia because of inadequate state protection and because of official corruption and influence.  The Tribunal defined the particular social group of which the applicant was a member as that group made up of people who may suffer a real chance of persecution if returned to Malaysia, for the essential and significant reason that they are a member of a particular social group, namely persons in Malaysia indebted to Ah Longs and their criminal associates, and returnees.

3. In summary terms, the applicant’s claims were that he began to borrow from Ah Longs in 2008 for gambling when he was a resident in Penang, Malaysia.  He said he was unable to repay his debts and was assaulted or beaten on multiple occasions.  In his statutory declaration, which was prepared with the assistance of lawyers and dated 30 June 2016, he referred to two occasions in Penang when he was beaten by Ah Longs or their criminal associates.  The dates of the two occasions on which the applicant was beaten were not particularised in the statutory declaration but, from my reading of the chronology set out, it was at sometime between when he began gambling and borrowing to fund that gambling in 2008 and when he relocated temporarily from Penang to Kuala Lumpur in 2010.

4. The statutory declaration refers to two beatings by separate groups of gangsters, one soon after the other.  The applicant reported the first event to the police. He said that he went to the police station to make a report and filed a report but did not hear from the police after that.

5. The applicant said that a second group, unknown to him, attacked him, punched him, beat him, and threatened him. He said that he telephoned the police to report the second attack but the police did not arrive in response to the telephone call. The applicant said he decided it was not worth taking the matter further and no further report was made by him.  He said in his statutory declaration that he then relocated to Kuala Lumpur in 2010.  He said that in February 2011 he decided to return to Penang and he began a relationship with his girlfriend, Pei See. 

6. The applicant said that the Ah Longs and their criminal associates threatened his father’s home.  He said that he lived between his father’s home and Pie See’s home.  He referred to an occasion where the Ah Longs or gangsters associated with Ah Longs covered Pie See’s house with red paint. He also referred to other threats of different kinds such as gangsters trying to enter his father’s house and so on but he did not refer in his statutory declaration to any further beatings or assaults that he experienced. He said that he then fled Malaysia in 2014 and came to Australia.

7. The Tribunal formed an adverse view of the applicant’s credibility.  It found that a claim that he was beaten with fists and wooden implements, after the red paint incident at his girlfriend’s house, which must have been, according to the chronology and the statutory declaration, after his return from Kuala Lumpur in 2011, was raised for the first time in the Tribunal’s oral hearing.

8. The Tribunal referred to allegations of a further beating as a “second beating”.  The description “second” is erroneous, as there were two beatings prior to the applicant’s relocation to Kuala Lumpur in 2010, one in quick succession after the other, referred to as having occurred in 2010 in the applicant’s statutory declaration.

9. Nevertheless, the applicant alleged this further beating took place in 2011 and after the incident where he claims gangsters covered Pei See’s house with red paint, which I will refer to in shorthand as the “red paint incident”.  It is clearly not referred to in the statutory declaration and may be properly described as a significant late claim.  It is a matter to consider in the making of any credibility assessment.

10. The Tribunal referred to other matters as well.  The applicant returned to Malaysia on numerous occasions after 2014 from Australia, apparently via Thailand.  The Tribunal referred to him returning to Malaysia on five to 10 occasions.  The Tribunal found that this was inconsistent with the applicant holding a subjective fear of persecution or of harm at the hands of Ah Longs or their gangster associates. The Tribunal referred to the applicant as having provided no detail about those visits.

11. The Tribunal referred to other implausibilities as well.  The Tribunal found it was implausible that the applicant claimed to have lived in Malaysia between 2008 and 2014 only on borrowings and gambling wins and, further, that he was able to live in Australia for seven months, apparently, without funds when he first arrived.  The Tribunal also referred to an inconsistent residential history in Malaysia. This is a reference to the applicant claiming to have lived in various places in Kuala Lumpur but his written claims apparently did not refer to the numerous residential addresses or more than one residential address in Kuala Lumpur.  The Tribunal also referred to the trips taken to Malaysia that I have mentioned and the lack of any corroborating evidence of the claims of beatings such as police reports.

12. The grounds of review are as follows. 

    Ground 1

13. The first ground is the Tribunal erred by constructively failing to exercise its jurisdiction, or failing to carry out its statutory task by not appropriately considering relevant information, namely, the primary applicant’s written submissions.  Counsel for the applicant clarified that the reference to written submissions was a reference to the applicant’s statutory declaration, which I have already referred to.  The particulars were as follows:

    (a)The applicant’s written submissions were central to the applicant’s claims and accordingly the statutory task to be undertaken by the Tribunal.

    (b)The Tribunal failed to actively engage with the written submissions as demonstrated by the brief and unjustified single reference to the applicant’s written submissions at paragraph 41 stating that the written claims are illogical and vague.

14. In the applicant’s submissions to the court those bare particulars were expanded upon. It was said that it could be inferred that the Tribunal failed to have regard to the statutory declaration, or to actively engage with the claims and information set out in the statutory declaration, because it referred to the “second beating” as a late claim.  It was submitted that it could be inferred that the Tribunal had not read or had regard to the statutory declaration because it is clear from the statutory declaration that there were two beatings referred to, and a reference to a second beating as a late claim would suggest that the Tribunal had not been aware that, in fact, there were two beatings referred to in the statutory declaration.

15. It is clear that the statutory declaration refers to two beatings.  For the reasons I have given, it is also clear that both of those were alleged to have occurred in 2010 before the applicant relocated to Kuala Lumpur.  However, it is also clear, in my view, that the applicant in his oral evidence raised a claim of a further beating, a third beating, that had not previously been made in the statutory declaration or elsewhere, which suggested invention.  I accept that the Tribunal should have referred to this beating as “the third” or “another” beating, but it was clearly aware of the claim that this beating occurring in 2011. A third beating had not been raised in the statutory declaration.

16. Further, in my view, the Tribunal’s awareness of the significance of this further alleged incident of a beating, that is, that it had not been raised before, clearly shows that the Tribunal was aware of the content of the statutory declaration, otherwise it could not have been aware of the fact that this allegation was a new one, as it clearly was.  I am satisfied that, contrary to the assertions or the allegations made in Ground 1, there is abundant indication in the Tribunal’s reasons that it was aware of the statutory declaration and its contents.  Ground 1 is not made out. 

    Ground 2

17. The second ground alleges:

    The Tribunal erred by making findings without a logical, rational or probative basis and/or acted unreasonably in considering the primary applicant’s credibility.

18. The particulars were alleged as follows:

    An adverse credibility assessment was the foundation for the Tribunal’s ultimate decision against the applicant. However, this assessment was based on findings not reasonably open to the Tribunal.  This included the Tribunal’s findings at:

    i.paragraphs [14], [16], [34], [38] and [41], that the applicant’s evidence was “illogical”, or did not address “illogicalities” and was “inconsistent”;

    ii.paragraph [36], that the applicant failed to account for his ability to support a lifestyle of constant debt (see contra [30] where the applicant indicated he continually changed the Ah Longs to whom he was indebted); 

    iii.paragraph [37], that during the hearing was the first time the applicant raised a second beating (see contra court book 128); 

    iv.paragraph [38], that the applicant’s account of police not responding appropriately was inconsistent and did not accord with country information (see contra 3.78 of the DFAT country information report – Malaysia, 19 July 2016); and

    v.paragraph [39], that the applicant had “evaded Ah Longs successfully for much of his adult life”.

19. Dealing with those particulars seriatim, the conclusion of the Tribunal that much of the applicant’s evidence was illogical and/or inconsistent was open to it.  The claim in relation to the further beating occurring in 2011 was inconsistent with the claims in the statutory declaration.  The Tribunal gave an example of what it considered to be an illogicality in the applicant’s claims when it referred to the applicant’s assertion that when he was beaten by gangsters in 2010. He said that he was taken or went to the police, but the police said, according to him, they could not help him because he could not provide them with details.  The Tribunal said that appears to be illogical because the applicant certainly had details.  He had details of his injuries, he had details of presumably when and where the beating had taken place, and he had details of the Ah Longs, from whom he had borrowed money.

20. I acknowledge, as counsel for the applicant asserts, that narrative is equally consistent with, if genuine, the police response being illogical.  I acknowledge that but the use of the word "illogical" in those circumstances is perhaps not the ideal word.  The description given by the applicant is certainly plausible in the sense that he was able to provide details of the assault, and the police response, assuming of course that the police response was a genuine one, would be unreasonable.  Nevertheless, given the overall difficulties with many of the claims of the applicant, I am not satisfied that any misuse of the word "illogical" in those circumstances is an error, and certainly not a jurisdictional error.

21. The other issue relates to a claim that it was illogical, or there was no evident or intelligible basis, for the Tribunal to conclude adversely against the applicant on his claim that he lived on borrowings and gambling winnings between 2008 and 2014. In my view, it was open to the Tribunal to conclude that that narrative was implausible.

22. The other particular alleged was that it was illogical for the Tribunal to conclude that during the hearing the applicant raised a second beating for the first time.  I have already dealt with that, and while I acknowledge that the use of the adjective "second" is mistaken, the gravamen of that matter is that it is a very telling instance of unexplained inconsistency in the applicant's narrative.  It was one properly focused on by the Tribunal, and in my view, once the confusion about the correct adjective is cleared away, it is very telling against the applicant's credibility.  In my view, there was nothing illogical about the Tribunal's conclusion.

23. Point (iv) of the particulars alleges:

    at paragraph [38] that the applicant’s account of police not responding appropriately was inconsistent and did not accord with country information.

24. I was referred to two pieces of country information.  The applicant referred to country information that was before the Tribunal which was entitled Malaysia: Common Claims. At page 12 of that document there is reproduced a reference to a DFAT Country Information Report on Malaysia which said that:

    Al Jazeera reported in 2014 that there were approximately 49 illegal gangs operating in Malaysia, with almost 40,000 members. The majority of street-level gang members tend to be Indian Malaysians, reflecting their relative economic vulnerability. However, high-level crime, including drug trafficking is more typically undertaken by Malaysian Chinese gangs. All gangs have the potential to engage in extortion and loan shark practices. However, obtaining details on these activities is difficult as victims of gang-related crimes do not generally report to law enforcement. Credible contacts advised that Malaysian authorities would likely view individuals who access loan shark services as having participated in an illegal practice.

25. Mr Overend for the applicant said that passage was in fact was consistent with the applicant's report that the police showed no particular interest in his complaints of having been beaten. I do not consider that quoted material has any bearing on the applicant's complaint that he was ignored.  It may be consistent with the applicant being reluctant to go to the police but he did not say he did not go to the police because he was afraid that he would be charged with an offence, or being seen as having participated in an illegal practice.  He said that he did go to the police on occasions and was ignored.  I do not consider that takes the matters much further.

26. Counsel for the respondent referred to another extract from the same material, at page 10, where loan sharks were discussed and the Malaysian Chinese Association, Head of Public Services and Complaints Department, a Mr Chong, discussed the loan shark menace in Malaysia.  In the final sentence on the second paragraph on that page, the following extract appears:

    Chong also said that, "The police were powerless against loan sharks as the transactions were on a 'willing seller/willing buyer' basis".  Police, however, "can take action if loan sharks resort to violence or extortion to recover their money".

27. Ms Ward for the respondent said that is likely to be the passage the Tribunal was referring to. I am not sure that I accept that the applicant’s claim is necessarily inconsistent with the country information.  It does not seem particularly consistent if Mr Chong’s remarks are to be taken at face value. Mr Chong at least implies that the Malaysian police will pursue loan sharks or their associates if violence is involved.  It does not necessarily say that on all occasions the police will take rigorous steps to pursue and follow up complaints. However, it appears to me that the extract I have quoted would be supportive of the Tribunal’s statement that the applicant’s claims of indifference from the police is not consistent with what is said to be a willingness of the police to pursue threats of violence associated with loan sharking.  While one might quibble about the precise wording, it appears to me that the characterisation by the Tribunal was open to it, but perhaps no more than that.

28. The final particular was a complaint that the Tribunal at paragraph 39 concluded that the applicant’s claims that he would be located by Ah Longs or their gangster associates if he returned to Malaysia and at the risk of harm is inconsistent with the fact that he has evaded the Ah Longs successfully for much of his life while living in Penang and Kuala Lumpur. 

29. The applicant submits that this conclusion is not open because on the applicant’s account he was beaten up twice in 2010 and beaten up again in 2011 but on each occasion the applicant appears to have not been seriously injured.  He was certainly not hospitalised.  There is no record of medical treatment, and according to the applicant, he continued to borrow from loan sharks from 2008 to 2014. 

30. In my view, the conclusion of the Tribunal that the claimed fear of returning to Malaysia was inconsistent with having survived relatively unscathed for eight years is not one which is illogical and one that was open to the Tribunal.  That being the case, Ground 2 is unsuccessful.

31. The application is dismissed. 

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       4 May 2022