ESV17 v Minister for Immigration
[2020] FCCA 2804
•15 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ESV17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2804 |
| Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misapplied real risk test – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: BSE17 v Minister for Home Affairs [2018] FCA 1926 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 |
| Applicant: | ESV17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 40 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 13 October 2020 |
| Date of Last Submission: | 13 October 2020 |
| Delivered at: | Perth |
| Delivered on: | 15 October 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr J Papalia |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 40 of 2020
| ESV17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Malaysia. He arrived in Australia on a visitor visa on 9 February 2016 (Court Book (“CB”) 22).
On 25 April 2016, the applicant applied for a Protection (subclass 866) visa (the “visa”) (CB 1-51).
The applicant claimed that, while in Malaysia, he was “in the frozen seafood business with a friend”, was required to go to a loan shark to obtain money and “his friend ran away”. He further claimed that the loan shark “constantly sent people to harass” him to pay the money back, imprisoned him and his wife – both of whom were tortured by waterboarding – and he was beaten “from time to time”. He claims that he fears harm from the loan shark if he returns to Malaysia.
On 6 July 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the protection visa (CB 66-84). Relevantly, the delegate found that the applicant could access protection from the Malaysian authorities and, as such, did not meet the criterion to be granted the visa.
On 21 July 2016, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 85-86).
On 4 October 2017, the Tribunal gave an oral decision affirming the delegate’s decision to refuse the applicant the visa (CB 91-96).
On 31 August 2018, this Court issued writs quashing the Tribunal’s decision dated 4 October 2017 and remitting the matter for rehearing (CB 97).
On 2 January 2020, the applicant’s representative sent a number of photographs to the Tribunal (CB 116-128).
The applicant attended a hearing before the Tribunal on 14 January 2020 (CB 130-131).
On 24 January 2020, the Tribunal affirmed the decision not to grant the applicant the visa (CB 138-148).
On 5 February 2020, the applicant applied to this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”) for judicial review of the Tribunal’s decision. To succeed in this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 11 pages long and spans 47 paragraphs.
The Tribunal began by setting out the background to the application. It outlined why the delegate had refused the visa and referred to the Court’s previous decision to quash the Tribunal’s decision dated 4 October 2017 (at [1]-[4]).
The Tribunal then summarised the criterion that needed to be met in order for the visa to be granted (at [5]-[10]).
The Tribunal then summarised the applicant’s claim as follows:
12.The applicant claims that he borrowed money from a number of loan sharks to support his business and that he was unable to make repayments. He claims that he was threatened and harmed. He fears returning to Malaysia because he fears the loan sharks will pursue him for the debt to be repaid.
The Tribunal then referred to particular claims and the evidence that the applicant had provided during the course of the review (including at the hearing before the Tribunal on 14 January 2020 when matters were put to him for comment) (at [13]-[27]).
The Tribunal then found as follows:
28. I accept that the applicant has the outstanding loans as described, that he has been threatened by agents of the loan shark, that he was once beaten and that he had red paint splashed on his house as described at the hearing. I do not accept the applicant’s narration of the harm he faced at the hands of the loan sharks as described in his application form for the reason that it was contradicted by his earlier oral evidence at the hearing and even when brought to his attention the revised description of the circumstances did not reflect his wording in the application form. I accept the evidence provided regarding his family’s harassment and his wife’s reporting to the police. I also accept the evidence of the applicant’s wife’s assets. I accept that the applicant didn’t report his bashing to the police for the reasons that he feared being laughed at as well as his fears of connections between the police and loan sharks.
The Tribunal continued:
30. In considering whether his fear of harm is based upon reasons outlined in s5J(1) and in particular whether there is a social group as defined by s.5L of the Act that the applicant would belong to I have considered ‘debtors’, ‘borrowers unable to make repayments threatened by debt collectors’, ‘Chinese debtors’ and other similar iterations. In these instances the ties that bind the potential group together breaches s.5L(d): ‘the characteristic is not a fear of persecution’, as the group is defined by a shared fear of persecution. I explained this to the applicant. He said that he doesn’t know what will happen to him if he was to return.
31. For the reasons given above I find that the applicant cannot be considered a member of a particular social group. Nor do the circumstances of the case lend themselves to consideration under any other of the reasons including race, religion, nationality and political opinion as per s.5J(1)(a).
32. As such, the applicants’ claims will be considered under Complementary Protection. The types of harm that fall under Complementary Protection are exhaustively defined by s.36(2A), specifically that the person will be either arbitrarily deprived of life, the death penalty will be carried out, the person will be subjected to torture, the person will suffer cruel or inhuman treatment or punishment and that the person may suffer degrading treatment or punishment. In this case I find it appropriate to give consideration to the categories of arbitrary deprivation of life and cruel or inhuman treatment and punishment based upon past harm along with what can be deduced from country information.
The Tribunal then extracted the country information that it had put to the applicant during the course of the hearing and the applicant’s responses to that information (at [33]-[38]). The Tribunal accepted that the applicant as a “debtor” would face a real risk of significant harm (at [35]) but referred to the protection the applicant might obtain from authorities.
The Tribunal continued:
39. In considering whether the applicant faces a less than real risk of significant harm as a necessary and foreseeable consequence of his removal from Australia I take into consideration the past actions of the loan sharks and their behaviour towards him and consider the impact police and other authorities may have in reducing his level of risk.
40. I note that the applicant’s wife reported prior harassment to the police and the harassment stopped. I do not accept the reasoning the applicant gave, namely that her and her father were able to talk the loan sharks out of pursuing her assets as I find this to be an illogical assumption. She was married to the applicant. They are seeking their funds to be returned. They are operating illegally. They have used force against him and intimidation against her. I do not accept that they could be talked out of placing further pressure on her to sell her assets.
41.I note that country information states that the police are flagging intent to tackle the loan sharks. While this isn’t the same as actually tackling them it is an indicator of their stance to act. Similarly, their willingness to open a case, as the applicant testified following his wife’s reporting of the incident, suggests that the police do take action.
42. I note that the applicant’s wife has assets whose value exceeds the value of the debt. Selling the house would mean he and his family would need to live in rented property and not be without a place to live as the applicant suggested. The applicant chose not to pursue this option. This reflects negatively on the applicant’s perception of the threat and in turn I find is evidence to be taken into consideration when weighing the seriousness of the actual threat. Similarly, I note that the applicant’s reluctance to engage with the police is, in part, because of a fear of being laughed at by his friends. This is not necessarily representative of someone who is genuinely fearful for his life. Though, I note the cultural context as noted in the country information in [35] and as such place little weight on this. Furthermore, the applicant’s lack of effort to find alternative means of settling the debt such as I identified at [33] and [38] similarly suggest that the applicant is not necessarily desperately fearful for his life. All of these instances are only indicators of the applicant’s perceptions and as such I place moderate weight on them as evidence in assessing the seriousness of the threat from the loan sharks.
43. Overall, when balancing the willingness of the police to act, the evidence that the police do act and the consequence of reporting to the police against the level of risk the applicant faces arising from country information and his own actions I find that the involvement of the Royal Malaysian Police will reduce the level of risk to less than a real risk of significant harm.
The Tribunal was not satisfied that the applicant faced a real chance of serious harm or a real risk of significant harm for the reasons claimed (at [44]-[46]).
Accordingly, the Tribunal affirmed the decision not to grant the applicant the visa (at [47]).
Proceedings in this Court
The applicant’s judicial review application filed 5 February 2020 contains three grounds of review as follows:
1. The Tribunal failed to apply the ‘real risk’ to the applicant’s claim.
Particulars
Paragraphs 35, 36 and 42 of the decision record
2. The Tribunal erred in applying the country information inflexibly.
Particulars
Paragraph 37 of decision record
3. The Tribunal made a finding without supporting evidence.
Particulars
Paragraph 43 of decision record
The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of written submissions. No further materials were provided.
The materials before the Court thus include the judicial review application, a Court Book numbering 149 pages (marked as Exhibit 1) and an outline of submissions filed by the Minister on
23 September 2020.
At the hearing before this Court, the applicant appeared without legal representation. He was assisted by a Mandarin interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions. The applicant confirmed that he had copies of both documents with him.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong”.
To assist the applicant, the Court explained that it needed to determine whether the Tribunal had made a jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap but that for migration decisions of this sort they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa he now seeks. Rather, the Court can only undertake an analysis of whether the Tribunal made a material error in coming to the conclusion that it did.
Against that background, the applicant stated that all of the evidence and information that he provided was true and correct. He stated that he felt that the Tribunal did not “investigate” properly and that this was “dangerous”.
The applicant’s oral submissions simply disagreed with the Tribunal’s decision. They do not address his grounds of review and they do not demonstrate error. At best, he seeks merits review of the Tribunal’s decision.
Consideration
Ground 1
The applicant argues in ground 1 that the Tribunal misunderstood the “real risk” test in paragraphs [35], [36] and [42] of its decision.
The “real risk” test carries the same standard as the “real chance” test that is applied in the refugee criterion. That is, a “real risk” is a substantial risk, as opposed to a remote risk or a far-fetched possibility: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. A real risk may well be below 50 percent.
Section 36(2B) provides specific circumstances by which an applicant is taken not to have a “real risk”. Section 36(2B) provides:
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Against this discussion, it is necessary to consider whether the Tribunal erred in its assessment of whether there was a “real risk”.
Paragraph [35] of the Tribunal’s decision states:
35.Based upon the below country information I accept that the applicant as a debtor faces a real risk of significant harm:
Sources report that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence, having their home splashed with red paint (culturally understood as a symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or having their families’ physical safety threatened. Sources claim that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members, and those borrowers and their family members have been shot at gunpoint and had fingers cut off. Due to the illegal/underground nature of loan shark activity, DFAT is not able to verify these claims. There is significant societal shame associated with not being able to repay a loan shark. Sources report many people see suicide as the only honourable way out of being unable to repay a loan shark debt. DFAT is aware that those in debt to loan sharks have been counselled by intermediaries to place their family in a safe location and travel overseas to earn a foreign income to repay their debt faster, and to reduce risks and shame to their family.
In his oral submissions, the applicant asked why he could be sent back to Malaysia if the Tribunal has found that there is a real risk of significant harm.
The applicant has read this passage in isolation. The Tribunal’s decision is to be read as a whole. This paragraph must be read with those that follow, in particular [36]-[43].
While the Court understands the applicant’s concern, s.36(2B) deems any risk not to be “real” if the level of state protection available lessens the risk to a level below one that is “real”. Here, the Tribunal analysed and assessed whether the availability of state protection measures lowered the risk to below a level that is “real”. It found that the protective measures available in Malaysia had that effect.
Accordingly, when read in context, no error arises in [35] of the Tribunal’s decision.
Paragraph [36] then states:
36. According to the law there are certain circumstances, though, in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
The Tribunal is not applying the real risk test in this paragraph. It is simply summarising s.36(2B) of the Act.
Paragraph [42] then states:
42. I note that the applicant’s wife has assets whose value exceeds the value of the debt. Selling the house would mean he and his family would need to live in rented property and not be without a place to live as the applicant suggested. The applicant chose not to pursue this option. This reflects negatively on the applicant’s perception of the threat and in turn I find is evidence to be taken into consideration when weighing the seriousness of the actual threat. Similarly, I note that the applicant’s reluctance to engage with the police is, in part, because of a fear of being laughed at by his friends. This is not necessarily representative of someone who is genuinely fearful for his life. Though, I note the cultural context as noted in the country information in [35] and as such place little weight on this. Furthermore, the applicant’s lack of effort to find alternative means of settling the debt such as I identified at [33] and [38] similarly suggest that the applicant is not necessarily desperately fearful for his life. All of these instances are only indicators of the applicant’s perceptions and as such I place moderate weight on them as evidence in assessing the seriousness of the threat from the loan sharks.
Again, there is no application of the real risk test in this paragraph. The Tribunal is merely weighing the evidence before it to determine the seriousness of the threat the applicant faces. The seriousness of the threat informs the risk of harm the applicant faces and the adequacy of protective measures that may be required. All the Tribunal is doing at [42] is making a factual finding as to the seriousness of the threat which will inform its assessment of whether the applicant faced a real risk of harm.
No error arises from [42].
In relation to the Tribunal’s application of the real risk test as a whole, the Court does not consider any error to have occurred.
Section 36(2B) required the Tribunal to be satisfied that the applicant could obtain protection from the authorities – such that he would not be at a real risk of suffering significant harm as a debtor.
The Tribunal, having considered the applicant’s particular evidence and circumstances, was satisfied that the state protection that was available to the applicant would reduce the level of risk to less than a real risk of significant harm. There was evidence in support of that finding (in the form of country information and the applicant’s own evidence). The Tribunal correctly understood and applied s.36(2B).
Ground 1 is, accordingly, dismissed.
Ground 2
The applicant states that the Tribunal “inflexibly” applied the following country information referred to at [37], which provides:
37. Regarding the ability of the applicant to obtain protection from the authority such that he would not face a real risk, I put to the applicant the following country information:
In October 2019, media reported that the RMP [Royal Malaysian Police] planned to embark on a ‘major war’ against loan sharks.
The applicant responded that if the Malaysian police can protect him then he wouldn’t be here but he doubts that is true because of the connections between the police and loan sharks. I put to him that that may have been the case in 2016 but now it appears that the Malaysian police have the intent to fight the loan sharks as they are flagging a major war against them. He said that he has seen those same reports in the news. He said that he does not know what will happen to him if he returns and whether the Malaysian police can protect him.
The Tribunal did not, in fact, apply the country information in this paragraph. Rather, it put the country information to the applicant and asked him to respond to it, which he did. The applicant did not dispute the country information.
The Tribunal’s “application” of the country information appears to occur at [41] (where the Tribunal suggests that the information indicates an intention from the police to take action against loan sharks) and at [43] (where the Tribunal refers to the reduction in the level of risk to the applicant in part on the basis of the country information).
The use of and weight given to country information is a matter for the Tribunal: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10.
Here, the Tribunal’s use of the country information was not “inflexible”. It was entirely reasonable. The applicant was given an opportunity to say whether he disputed the country information or took issue with its accuracy. He said nothing in that regard. He simply said that he did not know if the police could help him (at [37]).
The Tribunal’s assessment and consideration of the country information in determining whether the applicant could obtain protection from the Malaysian authorities was entirely sound. Indeed, the Tribunal seemed to place more weight on the applicant’s own evidence than on the country information. For example, the Tribunal found that the country information indicated an intent to “tackle” loan sharks. However, the evidence the applicant provided about his wife lodging a report and a case being opened suggested that the police do take action (as opposed to just an intention).
Ground 2 fails to identify any jurisdictional error.
Ground 3
Ground 3 states that the Tribunal made a finding without supporting evidence and references [43], which provides:
43. Overall, when balancing the willingness of the police to act, the evidence that the police do act and the consequence of reporting to the police against the level of risk the applicant faces arising from country information and his own actions I find that the involvement of the Royal Malaysian Police will reduce the level of risk to less than a real risk of significant harm.
In BSE17 v Minister for Home Affairs [2018] FCA 1926, the principles relevant to a “no evidence ground” were summarised as follows:
33. There is no issue between the parties as to the applicable principles, which may be briefly stated as follows. The “no evidence” ground cannot be made out unless it is established that there was no evidence capable of supporting the impugned finding or inference. Even a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59]. Further, evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [39]-[41] per Gummow and Hayne JJ; see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J.
Here, the finding that the applicant takes issue with is that the involvement of the police will reduce the applicant’s risk of harm to below a “real risk”. The applicant suggests that there was no evidence to suggest that the involvement of the police would do so.
Paragraph [43] must be considered in the context of the paragraphs which preceded it: namely, [32]-[42]. In this regard, the Tribunal noted that:
a)the country information indicated an “intention” by the authorities to act against loan sharks (at [37] and [41]);
b)the applicant’s evidence was that his wife had made a report to the police who then opened a case – which demonstrated a willingness from the authorities to act and take action when reports are made (at [41]);
c)after having made the report to the police, the harassment stopped. The Tribunal rejected the applicant’s explanation for why this occurred (at [40]); and
d)the applicant’s own actions (choosing not to pay off the debt despite having the assets to do so and not seeking alternative means to pay off the debt) undermined the seriousness of the threat (and therefore the risk it posed).
Considered together, it is apparent that there was much evidence to support the finding made at [43]. It is also the case, although not argued, that the Tribunal’s finding was entirely logical. The basis for the finding was the applicant’s own evidence about what actions had and had not been taken.
Ground 3 is, accordingly, dismissed.
Conclusion
The Court is not satisfied that any jurisdictional error has been identified. The Court is otherwise satisfied that no error arises.
The application is, accordingly, dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 15 October 2020
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