Erv17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 358

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ERV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 358

File number(s):	SYG 3259 of 2017
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	17 December 2021
Catchwords:	MIGRATION – Application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a Protection visa – whether Tribunal failed to consider claims or material that was before it – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 476
Division:	General
Number of paragraphs:	23
Date of hearing:	9 December 2021
Place:	Sydney
The Applicant:	Appeared in person, assisted by an interpreter, by telephone
Solicitor for the First Respondent:	Mr J Pipolo of Mills Oakley Lawyers, by telephone

ORDERS

SYG 3259 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ERV17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	17 DECEMBER 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

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

THE COURT NOTES THAT:

3.These are orders of the Federal Circuit and Family Court of Australia (Division 2).

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

INTRODUCTION

1. The applicant, a national of Taiwan, applies for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (subclass 866) visa (Protection visa).

   CLAIMS FOR PROTECTION

2. In his application for a Protection visa the applicant claimed he left Taiwan because he had been detained and threatened by Taiwan’s “biggest gang group” because the applicant was unable to repay loans he had borrowed from the group to fund his gambling addiction. The applicant claimed he was captured and tortured many times. The applicant also claimed he sought help from the police, but the gang was too powerful. The applicant claimed he tried to hide in the countryside for two months. He heard news the gang was in search of the applicant everywhere. The gang burnt the applicant’s house, and asked the applicant’s parents about his situation; and the gang frequently harassed the applicant’s parents.

3. At the hearing before the Tribunal, the applicant claimed that it was his father, not the applicant, who had the gambling addiction problem, and who had borrowed money from the loan shark. The applicant claimed his friend, to whom the applicant paid $3,000, had incorrectly included in the applicant’s form of application for a Protection visa that the applicant had a gambling addiction, and that the applicant had incurred debts. The applicant claimed that his father borrowed money from the loan shark 13 years ago; the applicant’s father had not repaid the loan, and he avoided doing so by hiding from the loan shark’s gang; and the applicant became the target of the loan shark’s gang for trying to protect his father from being assaulted by gang members when the applicant was still in high school. The applicant said he bit one of the gangsters.

   TRIBUNAL’S REASONS

4. The Tribunal found the applicant was not a witness of truth. The Tribunal said:[1]

   The internally inconsistent claims he gave at the hearing are not consistent with the claims he put before the Department, and his explanation as to how his original claims were incorrectly recorded is vague and ultimately not satisfactory. I do not believe that the alleged friend of a friend, who was able to transcribe correctly [the applicant’s] family address in Taiwan, would have made so many substantive claims in the protection visa application form that were and remained for so long unbeknownst to [the applicant].

   [1] CB89-90, [28]

5. The internally inconsistent evidence to which the Tribunal appears to refer is the evidence the Tribunal set out in its reasons which relates to three topics. The first is the time at which the applicant claimed the applicant’s father obtained loans from the loan shark. The applicant first said his father borrowed from the loan shark 13 years ago, but later said his father had only been under pressure from the loan shark and his gang for 5 or 6 years.[2] The second topic relates to when the applicant last saw his father. The applicant initially said he did not know his father’s occupation because he had not been in contact with him for a long time; and the applicant later said that he had dinner with his father before he came to Australia. When the Tribunal raised “the discrepant evidence on this subject”, the applicant acknowledged he had dined with his father just before coming to Australia.[3] The third topic relates to where the applicant was residing immediately before he left Taiwan. In his Protection visa application the applicant stated he lived in his family’s home; before the Tribunal the applicant said he did not reside there because he had fled to the countryside some years before.[4]

   [2] CB89, [21]

   [3] CB89, [22]

   [4] CB89, [27]

6. Given the Tribunal did not accept the applicant was a witness of truth, the Tribunal was not satisfied the applicant met the criteria for the granting of a protection visa as provided for by s 36(2)(a) and s 36(2)(aa) of the Act.

   GROUNDS OF APPLICATION

7. The application contains the following grounds of application (numbers in square brackets added, but errors in the original):

   [1] 1, I don’t think DIBP and AAT’s decision are fair and reasonable as they failed to take a good consideration in my real situation in my home country and ignoring the risk of my background

   [2] 2, AAT did not consider my statement and comments given to the questions asked in the hearing and judge my fears simply with the member’s prejudice.

   [3] 3, AAT failed to prudently consider my risk and financial hardship if I return to origin

   [4] 1, I am a Taiwan citizens and have a strong fears of returning to my home country.

   [5] 2, AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence.

   [6] 3, The tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observe

8. At the hearing I invited the applicant, who is not legally represented, to make submissions about why he believes the Tribunal’s decision should be set aside. After he completed this part of his submissions, I read out each of the grounds of application, and I asked the applicant whether he wished to say anything in relation to each ground in addition to what he had already said to me.

9. I will first identify and address the submissions the applicant made without reference to the grounds of application. I will then consider each ground of application.

   Submissions made at hearing not specifically referable to grounds of application

10. The applicant submitted there are many people in Taiwan who have committed murders, but they have been exonerated; the applicant will have trouble with underworld figures. That poses a great risk for the applicant. The applicant said he did not get involved in gambling; he had no choice but to protect his father. In response to my question whether the applicant believed the Tribunal made any error the applicant said the Tribunal did not take into consideration the risk to his safety. The applicant also referred to the pressure the People’s Republic of China is imposing on Taiwan.

11. Most of the applicant’s submissions appealed to the merits of his claims for protection. As I informed the applicant, this Court does not have jurisdiction to consider the applicant’s claims for protection; and this Court’s role is limited to determining whether the Tribunal made any jurisdictional error.

12. I accept that the applicant’s submission that the Tribunal did not take into consideration the risk to the applicant’s safety is not an appeal to the merits; but I do not accept the Tribunal did not consider the risk the applicant would face if he returns to Taiwan. The Tribunal assessed that risk on the basis of its not having accepted the factual premises of the applicant’s claims, because the Tribunal found the applicant was not a witness of credit.

    Grounds of application

13. Ground [1] may be taken to claim the Tribunal’s decision was unreasonable because the Tribunal did not properly consider the applicant’s situation, and the situation in Taiwan. I do not accept that claim.

14. The Tribunal did consider the applicant’s situation and, by implication, the situation in Taiwan; but the Tribunal did not assess the applicant’s situation by reference to the factual premises on which the applicant’s claims relied. The Tribunal assessed the applicant’s situation by reference to its finding that the applicant was not a witness of credit and, therefore, on the basis of its non- acceptance of the factual premises of the applicant’s claims. Ground [1], therefore, fails.

15. Ground [2] claims the Tribunal did not consider the applicant’s evidence, and that it assessed the applicant’s claims with a prejudiced mind. I do not accept that claim. The Tribunal identified the claims the applicant made in his form of application, the claims the applicant made before the Tribunal, inconsistencies in the evidence the applicant gave at the hearing before the Tribunal, and the explanation the applicant gave for the difference between the claims he made in his application for a Protection visa, and the claims he made before the Tribunal. Further, the grounds on which the Tribunal relied for not accepting the applicant’s explanation for the inconsistencies in the claims the applicant made are grounds on which it was reasonably open to the Tribunal to rely. Ground [2], therefore, also fails.

16. Ground [3] claims the Tribunal failed to consider the applicant’s risk and financial hardship if he returns to Taiwan. This repeats the effect of ground [1]. As I have already found, the Tribunal did consider the risk the applicant would face if he returns to Taiwan; but the Tribunal assessed that risk on the basis that it did not accept the factual premises of the applicant’s claims. Ground [3] also fails.

17. Ground [4], which claims the applicant fears returning to Taiwan, is an appeal to the merits of the applicant’s claims for protection and, for that reason, is incapable of supporting a claim of jurisdictional error.

18. Ground [5] appears to be directed to paragraph 17 of the Tribunal’s reasons, which refers to the applicant having “provided no material at all to the Department to substantiate his claim”. Ground 5 appears to submit that the Tribunal made an error because it refused the applicant’s claims because of the absence of evidence. That is not a correct characterisation of the reasons for which the Tribunal affirmed the delegate’s decision. The Tribunal affirmed the delegate’s decision because it found the applicant was not a witness of truth; and the Tribunal so concluded because it found the applicant’s claims before the Tribunal were inconsistent with the claim the applicant made in his application for a Protection visa; it did not accept the applicant’s explanation for that inconsistency; and the Tribunal found that the applicant gave inconsistent evidence before the Tribunal. It was reasonably open to the Tribunal to find, for these reasons, the applicant was not a witness of truth. Ground [5], therefore, also fails.

19. Ground [6] alleges reasonable apprehension of bias. The ground is unparticularised and for that reason alone it cannot succeed.

20. In relation to ground [6] the applicant submitted the Tribunal did not stand in the applicant’s shoes, and failed to consider the applicant’s position from the applicant’s perspective. The applicant said there was evidence the applicant’s leg was broken. This set of submissions is another way of submitting the Tribunal did not properly consider the applicant’s claims, including the applicant’s claim that his leg had been broken 12 years ago.[5] The Tribunal did not specifically refer to the applicant’s claim that his leg had been broken; but its general finding that the applicant was not a witness of truth, and the absence of any corroborating evidence that the applicant’s leg had been broken, necessarily implies that the Tribunal’s general finding extended to its not accepting the applicant’s claim that his leg had been broken 12 years ago.

    [5] CB89, [26]

21. Ground [6], therefore, also fails.

    CONCLUSION AND DISPOSITION

22. The applicant has not established that the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

23. The Minister applied for an order for costs, and he claimed an order that the costs be set in the amount of $5,400. The applicant made no submission against my making an order for costs in favour of the Minister, assuming the applicant were to fail, and my setting costs in the amount of $5,400. I am satisfied that costs should follow the event, and that $5,400 represents a fair indemnity for the costs the Minister incurred in resisting the application. I therefore also propose to order that the applicant pay the Minister’s costs set in the amount of $5,400.

I certify that the preceding twenty-three (23) numbered paragraph is a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       17 December 2021