GVC18 v Minister for Home Affairs
[2020] FCA 519
•22 April 2020
FEDERAL COURT OF AUSTRALIA
GVC18 v Minister for Home Affairs [2020] FCA 519
Appeal from: GVC18 v Minister for Home Affairs & Anor (No. 2) [2019] FCCA 1935 File number: NSD 1281 of 2019 Judge: REEVES J Date of judgment: 22 April 2020 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) – where the Tribunal affirmed a decision not to grant the appellant a protection visa – where the grounds of appeal failed to identify error in the primary judgment – appeal dismissed Legislation: Migration Act 1958 (Cth) Cases cited: GVC18 v Minister for Home Affairs & Anor (No. 2) [2019] FCCA 1935
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Date of hearing: 20 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr MT Sherman Solicitor for the First Respondent: HWL Ebsworth Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
NSD 1281 of 2019 BETWEEN: GVC18
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
22 APRIL 2020
THE COURT ORDERS THAT:
1.The notice of appeal filed on 13 August 2019 is dismissed.
2.The appellant is to pay the first respondent’s costs of the appeal to be taxed if not agreed.
3.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REEVES J:
INTRODUCTION
This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 17 July 2019 (GVC18 v Minister for Home Affairs & Anor (No. 2) [2019] FCCA 1935 (GVC18)). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the Minister for Home Affairs (the delegate), the first respondent, to refuse to grant the appellant a protection visa (subclass 866).
FACTUAL BACKGROUND
In his judgment, the primary judge recorded the factual background to the appellant’s application in the following terms (GVC18 at [2]–[3]):
2.The [appellant] entered Australia in 2005 as the holder of a temporary holiday visa. He again entered Australia on 1 March 2006, and again on 4 June 2006. He has remained in Australia since that time under a number of different visas, most of which were student visas.
3.On 10 February 2014 the [appellant’s] student visa was cancelled. On 3 May 2018 the [appellant] was remanded into criminal custody on charges relating to receiving and dealing with the proceeds of crime and participating with a criminal group. He was released from criminal custody on bail, but was detained under s.189(1) of the [Migration Act 1958 (Cth)]. On 22 June 2018 the [appellant] signed a request for voluntary removal from Australia. On 7 August 2018 the [appellant] was convicted of the charge of “Receive Property-Theft”. He was sentenced to 9 months imprisonment, but released from criminal custody on his entering into a good behaviour bond for a term of 9 months. On 9 August 2018 the [appellant] withdrew his request for voluntary removal from Australia. The [appellant] applied for protection on 17 August 2018.
(Italics and errors in original)
As recorded by the primary judge (GVC18 at [4]), in his visa application the appellant claimed protection based on the following claims:
… he had been doing business with his brother and [had] borrowed money because his business was poor. He borrowed money from many places, and the interest on the debts has grown so much he cannot return to Korea. [He] claimed he and his family have suffered mental and physical threats from their creditors. He claimed that personal lenders had requested the [appellant] to do everything he can to repay the money; specifically they demanded the [appellant] sell the organs of his body. [He] claimed he cannot report these matters to the police because the creditors know where the [appellant’s] family live and his family will face danger.
Further, at the hearing before the Tribunal, the appellant claimed (GVC18 at [5]):
… he and his brother borrowed money from Korean loan sharks in Australia over five to six years ago; [he] borrowed the money for his brother to set up an advertising business in Lidcombe, and he started to borrow money when his brother was losing money and was unable to borrow more. [He] said the loan sharks know his family’s address in Korea, they demanded his family pay the interest, and that he heard of the loan sharks having made this demand of his family before he cut off contact with his family five or six years earlier. [He] also claimed that the loan sharks in Australia were trying to send him to Korea where he claimed he feared being killed by their contacts. [He] also claimed the loan sharks suggested he become involved in “selling bank accounts”.
(Italics in original)
Finally, after the hearing, the appellant provided a further statement to the Tribunal where he claimed (GVC18 at [6]):
I’ve been hurt by the lips blowing my face to the creditor.
I had a few stitches at the Korean Hospital in the city (Worldciti Medical) not sure this name. I have not left any pictures or evidence of what happened to my creditors, but I think the above mentioned hospital record will remain.
(Italics and errors in original)
THE TRIBUNAL DECISION
The Tribunal began by setting out the factual background to the appellant’s claims (at [1]–[5]) and the criteria necessary to obtain a protection visa (at [6]–[11]). It then turned to consider the details of the appellant’s claims, including those set out in his protection visa application, in his evidence before the Tribunal and its questioning of him during that hearing (at [12]–[30]). Finally, the Tribunal turned to consider independent country information concerning the conditions in the Republic of Korea (at [31]–[33]).
Having reviewed those materials, the Tribunal then made the following findings in relation to the appellant’s protection claims under s 36(2)(a) of the Migration Act 1958 (Cth) (the Act) (at [35]–[36]):
35.[The appellant’s] claimed fear of being persecuted in Korea does not relate to any of the five reasons cited in s.5J(1)(a) of the Act. Rather, it is a fear of being harmed individually, by a [sic] criminals in Korea with links to criminals in Australia, for reasons of his individual failure to act pursuant to a specific financial contract between himself and them.
36.For this reason, I am not satisfied that [the appellant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Next, the Tribunal turned to consider appellant’s complementary protection claims under s 36(2)(aa) of the Act. In that respect, the Tribunal first made a finding that “the Republic of Korea is the receiving country in the present case” (at [39]). Then, after considering the criteria relevant to its assessment under that section and reviewing the appellant’s claims, it concluded (at [59]–[61]):
59.Having considered all of the relevant information before me, I find that [the appellant] owes money to the loan sharks from whom he borrowed in Sydney and has not repaid them in spite of having spent years raising money through criminal activities proposed by them. I accept that the loan sharks here have networks in Korea. I accept that such networks use violence and threats of violence to enforce their loan contracts and that [the appellant] may face coercion and intimidation from the lender’s network upon his return to Korea. However, I am satisfied on the basis of some of the information [the appellant] provided orally and also on the basis of independent country information cited above, that [the appellant] could obtain, from an authority of the Republic of Korea, protection such that there would not be a real risk that he will suffer significant harm: s.36(2B)(b).
60.Having considered all of the evidence in this matter in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of the [appellant] being removed from Australia to the [R]epublic of Korea, there is a real risk that [the appellant] will suffer significant harm.
61.Accordingly, I am not satisfied that [the appellant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The Tribunal therefore affirmed the decision of the delegate not to grant the appellant a protection visa.
THE PRIMARY JUDGMENT
The appellant’s grounds of review before the primary judge were as follows (GVC18 at [10]):
1.The result of trial were without tolerance virtue and I have tried to explain my case in limmited condition but they refuse my application.
2.I have been living here from long time. I follow australian government and immigration law before i involved in criminal offence. I already got punished for my mistakes and still i regret my bad behaviour.
3.I do respect the decision by the migration act. I have been inside the four walls from more than 6 months, and I also isolated from society from many years. I just need a second and final chance to go forward to my life.
4I made a lot of debt from bad loan shakers. I have involved criminal activity because of them. I ran away from social and hidden from loan shakers.
5I have huge concirn about treats from loan shakers. I always regret being succumbed to follow criminal active.
(Italics and errors in original)
After setting out his reasons for rejecting the appellant’s application for an adjournment and various events that followed (GVC18 at [11]–[17]), the primary judge examined each of the above grounds in turn. First, his Honour considered that the appellant’s ground 1 failed for the following reasons (GVC18 at [19]):
I do not accept that the [appellant] was not given an opportunity or a sufficient opportunity to present his case. That the hearing with the Tribunal took no longer than two hours by itself says nothing about whether the [appellant] was given a fair opportunity to say what he wanted to say about his claims for protection. Further, that the [appellant] was in detention by itself also does not mean he was denied an opportunity to present evidence. Detention, of course, imposes serious limitations on a person’s liberty and ability to act. The [appellant], however, did present evidence in the form of country information which he told me he obtained from the Internet with the assistance of another detainee; and the only evidence the [appellant] identified he was unable to provide to the Tribunal was evidence in relation to a wound which he claimed was inflicted on him by a creditor. There is nothing to suggest, however, that it was due to his detention that the [appellant] was unable to present this evidence to the Tribunal. In the post-hearing statement the [appellant] provided to the Tribunal, the [appellant] said he was not sure of the name of the medical facility where he was treated, other than stating it was the “Korean Hospital in the city (Worldciti Medical)”. Finally, there is nothing in the evidence before me that suggests the Tribunal interrupted the [appellant] or otherwise prevented him from saying what he wanted to say.
(Italics in original; footnotes omitted)
Secondly, after noting that the appellant had not made any submissions in support of grounds 2, 4 and 5, his Honour concluded that none of those grounds disclosed jurisdictional error because they concerned matters of fact.
Thirdly, with respect to ground 3, his Honour concluded (GVC18 at [22]):
In relation to ground 3 the [appellant] repeated the substance of what he had previously said to me, namely that his being in detention hampered his ability [to] prepare for his case “wisely or properly”. For reasons I have already given, I am not satisfied the [appellant’s] having been in detention, however limiting on his liberty and ability to act, prevented the [appellant] from presenting to the Tribunal his claims for protection and evidence in support of those claims. Ground 3, therefore, also fails.
(Italics in original)
Finally, the primary judge considered and dismissed the collection of other matters that the appellant had set out in the affidavits he had filed with the Federal Circuit Court (GVC18 at [25]–[27]). Accordingly, his Honour concluded that none of the appellant’s grounds disclosed jurisdictional error by the Tribunal and that his application should be dismissed.
GROUNDS OF APPEAL
The appellant’s grounds of appeal to this Court were as follows:
1. The [appellant] never had a real and meaningful hearing.
2.There was a breach of S425 of the Migration Act 19ss (Cth) that Tribunal breached the requirements of procedural fairness by reason of flawed translation during the hearing.
(Errors in original)
In addition, subsequent to filing his notice of appeal, the appellant filed an affidavit in which he set out the following matters:
1.The first respondent’s decision made on 09 October 2018 to be quashed.
2.The second respondent’s decision on 22 November 2018 to be quashed.
3.The third respondent’s decision on 17 July 2019 to be quashed.
4.The respondent’s decision was unreasonable.
5.The respondent’s decision involved an error of law.
6.The respondent took into account irrelevant consideration.
7.The respondent’s failed to make relevant consideration into account.
8.The respondent’s in making its decision did not comply with the rules of natural justice and denied the [appellant] procedural fairness.
9.There was insufficient evidence or no evidence to support various finding mode by the respondent.
10. The [appellant] applies for an extension of time.
11.The [appellant] appeals from the whole of the judgement date on 17 July 2019.
(Errors and formatting in original)
CONTENTIONS
In support of this appeal, the appellant filed two pages of written submissions. Those submissions essentially followed the structure of the appellant’s affidavit mentioned above. However, none of them addressed the alleged deficiencies in the hearing which is raised by ground of appeal 1 and the only mention of the flawed translation raised by ground of appeal 2 was in [12], as follows: “I need a Korean interpreter in the court”. Otherwise, the only part of those submissions that alleged error on the part of the primary judge was as follows: “The court decided that these 1 and 2 errors would not affect the outcome”. It is unclear what “these 1 and 2 errors” are. However, it is convenient to set out the balance of the appellant’s submissions to demonstrate that they were confined to either the conduct of the officers of the Minister’s Department, or the Tribunal’s treatment of his application, or both:
1. The first respondent’s decision made on 09 October 2018 to be quashed.
Immigration did not interview me for more information on my protected visa application. This action removed the opportunity for me to provide information.
This is an act of exclusion that I’ve had a good chance in the tribunal hearing.
I have never had the opportunity to explain my situation. The opportunity that Immigration and the Tribunal has given me is not fair. I can’t accept the opportunity because the opportunity was made in a limited state where I was detained. I understand that the above points have been recognized by the court. I think this is the result that the opportunity given to me in the previous immigration screening was not fair. So I think I can demand new opportunities for this.
2. The second respondent’s decision on 22 November 2018 to be quashed.
In the appeal interview, I talk about injustice in situations where I can’t lead. In this interview, the member asked the main question and I mostly answered. I think it is unreasonable for the member to not ask questions about the physical threats I have specified in this interview. I didn’t have any questions about the wound on the face that I wrote on my application. Physical threats are one of the most important aspects of applying for this visa. In my further statement to AAT, the interpretation of this matter was unfair. This is where I was injured in Australia, but member understood in Korea. I was clear that I was in Australia at the time. The member already had immigration data about me, therefore This was a mistake by member.
3. The third respondent’s decision on 17 July 2019 to be quashed.
Recognizing the unfair opportunity of immigration and making a mistake in the AAT appeal but the court not return it. Recognizing errors and determining that they can’t affect the result is an obvious error. This court has corrected the immigration and previous court’s errors. It is important to have equal opportunities. The limited circumstances in immigration application and covering the AAT organizer’s mistake will result in another error.
4. The respondent’s decision was unreasonable.
Immigration refused my application without giving me an equal opportunity. Immigration had to accept my requested an interview before it made a decision. It had to consider applicant circumstance.
AAT was no act of receiving the right information just like immigration The AAT member skipped important issue question in his lead interview.
The court ignored unfair of opportunity and errors.
5. The respondent’s decision involved an error of law.
Immigration made a decision About the result of neglecting fairness.
AAT was misunderstanding about the place where I had a face injury, even the AAT member had my Immigration records.
The court ignored the errors.
6. …
…
7. The respondent’s failed to make relevant consideration into account.
Immigration did not consider my requested interview and noting provided evidences in the detention.
AAT made an error in my statement and also the AAT member did not take important matters in my history in the interview.
The court did not considered errors in immigration application, AAT decision even I summited evidence of my medical history.
8. The respondent’s in making its decision did not comply with the rules of natural justice and denied the applicant procedural fairness.
Immigration ignored my state in the decision,
The respondents Ignored applicants who are not familiar with legal process.
9. There was insufficient evidence or no evidence to support various finding mode by the respondent.
The decision was made without knowing the applicant’s situation. This is just one side of the decision. Even in the case of other interpretations, the respondents made this decision in the wrong direction.
10. The applicant applies for an extension of time.
I need more time because I have to defend myself without a lawyer. I have financial difficulties and I have already applied for a hardship so please consider this.
11. The applicant appeals from the whole of the judgement date on 17 July 2019.
I appeal from the decision of immigration to the decision of the court.
12. …
(Errors and formatting in original)
In respect of the appellant’s ground 1, the Minister submitted that:
The circumstance that the appellant was in immigration detention at the time of the Tribunal hearing and the duration of the hearing itself (at least one hour and thirteen minutes) do not, without more, provide a basis for the contention that the appellant was denied an opportunity to be heard by the Tribunal.
He added that:
… there [was] also no evidence before the [primary judge] that the Tribunal interrupted the [appellant] or otherwise prevented him from saying what he wished to say during the course of the hearing.
The Minister also submitted that the Tribunal was not required to make out the appellant’s case for him citing Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39. Finally on ground of appeal 1, the Minister submitted that the appellant’s references to the interview by an officer of the Department was not relevant to the integrity of the hearing before the Tribunal.
With respect to ground of appeal 2, the Minister pointed out that it did not appear to have been raised before the primary judge and therefore required leave to raise it for the first time before this Court. On that basis, he submitted that leave should not be granted because the appellant:
(a)[had] not particularised or otherwise identified any specific complaints regarding the translation that was undertaken by the NAATI accredited translator who assisted him at the Tribunal hearing; and
(b)[had] not placed any evidence before the Court upon which it could conclude that the translation at the Tribunal hearing was in any way defective.
As to the additional complaints contained in the appellant’s affidavit (at [16] above) and submissions (at [17] above), the Minister contended that the appellant did not make a claim about the wound on his face which had been allegedly suffered at the hands of his creditors and, in any event, the Minister submitted that matter was immaterial because, while the Tribunal did accept that he may suffer violence and threats from networks in Korea, that did not amount to significant harm because of the protection the appellant could obtain from the authorities in Korea. Finally, the Minister contended that it was open to the Tribunal, on the materials before it, to conclude that the appellant suffered his injury in Korea, and not in Australia.
CONSIDERATION
It can be seen from the appellant’s grounds of appeal set out above at [15] that both of them are in the most general of terms. Furthermore, neither of them is supported by any particulars. Nonetheless, both appear to be directed to the hearing before the Tribunal, rather than the hearing before the primary judge. It follows that neither has identified any error in the primary judge’s judgment. The appellant’s affidavit and submissions are steeped in similar defects. To the extent that they make any specific reference to the primary judgment, they contain vague and meaningless assertions about it. Nonetheless, unassisted by any direction from the appellant, I have carefully examined the primary judge’s reasons for judgment and, having done so, I am unable to detect the presence of any appellable error. It necessarily follows that the appellant has failed to demonstrate that any such error exists in the primary judge’s judgment.
CONCLUSION
For these reasons, the appellant’s appeal must be dismissed with costs. The orders will be:
1.The notice of appeal filed on 13 August 2019 is dismissed.
2.The appellant is to pay the first respondent’s costs of the appeal to be taxed if not agreed.
3.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 22 April 2020
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