GVC18 v Minister for Home Affairs and Anor (No.2)

[2019] FCCA 1935

FEDERAL CIRCUIT COURT OF AUSTRALIA

GVC18 v MINISTER FOR HOME AFFAIRS & ANOR (No.2) [2019] FCCA 1935

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether applicant given adequate opportunity to present his case – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5J(1)(a), 36(2)(aa), 36(2B), 189(1), 476

Applicant: GVC18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3647 of 2018

Judgment of: Judge Manousaridis

Hearing date: 11 June 2019

Date of Last Submission: 26 June 2019

Delivered at: Sydney

Delivered on: 17 July 2019

REPRESENTATION

Applicant in person, assisted by an interpreter.

Solicitors for the First Respondent: Ms S Lloyd of HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3647 of 2018

GVC18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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

Background

1. The applicant 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.

2. On 10 February 2014 the applicant’s student visa was cancelled. On 3 May 2018 the applicant 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 Act. On 22 June 2018 the applicant signed a request for voluntary removal from Australia. On 7 August 2018 the applicant 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 applicant withdrew his request for voluntary removal from Australia. The applicant applied for protection on 17 August 2018.

Clams for protection

1. The applicant’s claims for protection are set out in the form by which the applicant claimed protection. He there stated that he had been doing business with his brother and has 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. The applicant claimed he and his family have suffered mental and physical threats from their creditors. He claimed that personal lenders had requested the applicant to do everything he can to repay the money; specifically they demanded the applicant sell the organs of his body. The applicant claimed he cannot report these matters to the police because the creditors know where the applicant’s family live and his family will face danger.

2. The applicant gave further details of his claims at the hearing before the Tribunal on 9 November 2018. The applicant said he and his brother borrowed money from Korean loan sharks in Australia over five to six years ago; the applicant 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. The applicant 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. The applicant 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. The applicant also claimed the loan sharks suggested he become involved in “selling bank accounts”.

3. After the hearing the applicant provided to the Tribunal what he described as a “statement . . . in order to supplement what I did not do in the last interview”.[1] Particularly relevant to the matters the applicant (who is not legally represented) raised at the hearing before me is the following (errors in original):

   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.

   [1] CB80

Tribunal’s reasons

1. The Tribunal first considered whether the applicant’s claims, if accepted, fell within the definition of “refugee” given in s.5J of the Act. Although the Tribunal accepted that the harm the applicant claimed he feared, if accepted, would amount to persecution, the applicant’s claimed reasons for fearing persecution did not fall within the five reasons identified in s.5J(1)(a) of the Act, these being reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal then considered whether the applicant satisfied the criterion provided by s.36(2)(aa) of the Act, namely, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed to Korea there is a real risk that he will suffer significant harm.

2. The Tribunal accepted the applicant and his brother borrowed money from multiple sources “in the earlier part of this decade” to set up his brother’s advertising business in Lidcombe; that the applicant and his brother borrowed money on “usurious terms from loan sharks with contacts and network back in Korea”; that the advertising business did not go well, and that the applicant and his brother were at least for some time unable to meet the conditions of the loans to them, and in particular the loan from the Sydney-based, Korea-linked loan sharks. The Tribunal also accepted the applicant received pressure from loan sharks in Sydney, and that his well-being might have been “verbally threatened on occasions”, but this did not result in the applicant being the victim of violence. The Tribunal accepted the applicant entered into an arrangement with loan sharks about four or five years ago to undertake criminal activities to help repay what he and his brother owed on the loan with interest, and that this led the applicant into a career of criminality that was interrupted by charges, convictions, and detention in 2018. The Tribunal also accepted that the applicant has not fully repaid the loan, but it did not accept the applicant’s claims that the loan sharks are trying to coerce the applicant to return to Korea. The Tribunal also accepted that the applicant may face coercion and intimidation from the lenders network on his return to Korea.

3. The Tribunal, however, relying on country information, and in part on evidence the applicant gave that the authorities in Korea are willing and to some extent able to assist and protect citizens from loan sharks in that country (although stating he feared would be an exception), was satisfied that s.36(2B)(b) of the Act applied, namely, the applicant could obtain from an authority of the Republic of Korea protection such that the applicant would not be exposed to a real risk of significant harm. Given that finding, s.36(2B) applied so that it is to be taken not to be a real risk that the applicant will suffer significant harm if he were to return to the Republic of Korea. The Tribunal, therefore, was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Republic of Korea, there is a real risk the applicant will suffer significant harm.

Grounds of application and course of judicial review hearing

1. The application contains five grounds, these being the grounds contained in numbered paragraphs 1, 2, 3 that appear on page 3 of the application before the words “Grounds of application”, and the grounds contained in numbered paragraphs 1 and 2 that appear on the same page after these words. I will number the grounds 1 to 5, and they are as follows (errors in original):

   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.

   [4]I 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.

   [5]I have huge concirn about treats from loan shakers. I always regret being succumbed to follow criminal active.

2. The applicant applied for an adjournment but for reasons I gave at the hearing, I refused the application. For reasons contained in my reasons for refusing the application for an adjournment, [2] I made the following orders at the end of the hearing:

   a)By 18 June 2019, the Minister provide to the applicant an audio recording of the hearing before the Tribunal.

   b)By 26 June 2019, the applicant file and serve a document identifying, by reference to time, the place or places in the audio recording at which the applicant says he informed the Tribunal that he was a victim of physical violence by any creditor.

   c)The Court will be at liberty, after 26 June 2019 to deliver judgment without any further hearing if:

   i)the applicant does not file and serve a document as provided for by order (b); or

   ii)the applicant does file a document by 26 June 2019 but does not identify in the document any occasion in which he informed, or arguably informed, the Tribunal that he was a victim of physical violence by any creditor.

   [2] GVC18 v Minister For Home Affairs & Anor [2019] FCCA 1934

3. I also recorded the following matters in the orders I made:

   The Court notes the Court will invite further submissions from the parties if the applicant, in the document he files as provided for by [the orders], identifies an occasion or occasions in which he informed, or arguably informed, the Tribunal that he was a victim of physical violence by any creditor.

4. The hearing continued before me. I first asked the applicant why the Court should set aside the Tribunal’s decision. The applicant initially said that he wanted to be given another chance because he had not been given an opportunity to “appeal in – fully as I wish it”. When I said I could not simply give the applicant another chance, but I instead have to be satisfied there is a reason to set aside the Tribunal’s decision, the applicant said he had been treated “unfairly”. When I asked in what way he claimed he had been treated unfairly the applicant said he had not submitted “full evidence” to the Tribunal, and that he did not have an opportunity to provide evidence because he was in detention. I asked the applicant what evidence he says he did not have the opportunity to provide, and the applicant said it was a “certificate for my wound”. He said he was unable to do so because he could not remember the name of the medical centre he went to. The applicant also suggested the Tribunal interrupted him and prevented him from stating what he wanted to say. I then took the applicant to each of the grounds stated in the application.

5. On 14 June 2019 the Court received a letter dated 14 June 2019 from the Minister’s lawyers enclosing a USB stick containing the audio recording of the hearing before the Tribunal. The letter stated that a copy of that recording would be dispatched to the applicant. I assume the Minister’s lawyer did so.

6. On 26 June 2019 the applicant filed two affidavits. In none of the affidavits does the applicant say he did not receive the audio recording; and in none of the affidavits does the applicant purport to identify, by reference to time or at all, the place or places in the audio recording at which the applicant says he informed the Tribunal that he was a victim of physical violence by any creditor. Instead, in one of his affidavits, the applicant accepts he did not inform the Tribunal he was a victim of physical violence. The applicant says as follows (errors in original):[3]

   [3] Affidavit of GVC18 made 26 June 2019, Annexure A

   I did not testify about the injured in the AAT interview. This is different from what I said in the Federal Circuit court. I only mentioned the physical victim in the submission document, and in my protection Visa application form.

   On the other hand, I argued

   1.Why the member did not ask about the injured? It was mentioned on my protection Visa application form.

   I think the members should have at least checked the facts even if they did not think it was important. The question about it was not in the interview.

   2.Why the member cut off when I needed to explain more about the situation? In the AAT interview there are some points I did not explain more because the member cut off my words, and asked another question. My situation was not simple. And I did not describe enough in the PV application form. I would like to explain all the story, about what happened to me in the past, but in the interview I could only explain some part. So the member could not understand my situation.

   I ask you to include the above sentences on my ground.

7. In the second affidavit he filed, the applicant states he would “like to submit my hospital records as evidence of injury that I was in a state of threat”. The applicant annexed a document apparently signed by a doctor, which is as follows (errors in original):

   Consultation notes for [the applicant]

   Surgery

   Recorded by Dr . . . on Saturday 16/05/2015 at 13:23:54

   accidently hit got by spmeone’s elbow on the lip

   laceration in lower left end of lip

   Plan – tetanus vaccine given

   Sutured 5/3 x 4 after infiltration with 2% lignocaine

   Reason for visit:

   laceration lip

   Actins:

   Prescription printed: . . . . Three times a day

8. The affidavits the applicant filed go beyond the orders I made at the conclusion of the hearing. I will nevertheless consider the matters contained in the affidavits for the purpose of determining whether they identify any arguable case of jurisdictional error. I will first consider each of the grounds stated in the application.

Ground 1

1. I confirmed with the applicant that by this ground the applicant intends to claim that he was not given an opportunity or a sufficient opportunity to present his case, and that in support of that claim the applicant relied on his interview with the Tribunal taking no longer than two hours, and the applicant’s being unable to present evidence because he was in detention.

2. I do not accept that the applicant 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 applicant was given a fair opportunity to say what he wanted to say about his claims for protection. Further, that the applicant 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 applicant, 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;[4] and the only evidence the applicant 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 applicant was unable to present this evidence to the Tribunal. In the post-hearing statement the applicant provided to the Tribunal, the applicant 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 applicant or otherwise prevented him from saying what he wanted to say.

   [4] CB81

3. Ground 1, therefore, fails.

Ground 2

1. The applicant did not wish to make any submissions in relation to this ground. As stated, it does not disclose any jurisdictional error. It states matters of fact relating to period for which and some circumstances in which he has been in Australia,

Ground 3

1. In relation to ground 3 the applicant repeated the substance of what he had previously said to me, namely that his being in detention hampered his ability prepare for his case “wisely or properly”. For reasons I have already given, I am not satisfied the applicant’s having been in detention, however limiting on his liberty and ability to act, prevented the applicant from presenting to the Tribunal his claims for protection and evidence in support of those claims. Ground 3, therefore, also fails.

Ground [4]

1. The applicant did not wish to make any submission in relation to this ground. As stated, the ground discloses no jurisdictional error. It only states a part of the matters on which the applicant relied for his claim for protection.

Ground [5]

1. The applicant also did not wish to make any submission in relation to ground 5. That ground discloses no jurisdictional error. It only states a part of the matters on which the applicant relied for his claim for protection.

Matters stated in affidavits

1. The applicant may be taken to make two claims in the first of the two affidavits he filed on 26 June 2019 that I described above. The first is the claim the Tribunal did not ask the applicant about the wound he claims to have suffered at the hands of a creditor. The applicant states that he raised this matter in his form of application for a Protection visa. That does not appear to be correct. The first occasion on which the applicant referred to his having been physically attacked by a creditor was in his post-hearing statement. That is reflected in the Tribunal’s reasons. The Tribunal referred to the applicant’s evidence at the hearing that there was no need for the creditors to threaten him with any violence because they proposed the applicant work for them;[5] and the Tribunal later referred to the applicant making a claim in his post-hearing statement that creditors inflicted physical violence on him. The Tribunal considered that claim, and rejected it. It may be that the Tribunal misunderstood the applicant as having stated that he had been injured in Korea rather than in Australia; but the fact the applicant referred to the “Korean Hospital” rendered it reasonable for the Tribunal to have understood the applicant to have claimed that he had been treated in a hospital in Korea. At any rate, it is not reasonably arguable that the Tribunal acted unreasonably in interpreting the post-hearing statement as stating that the applicant had been treated in a hospital in Korea. Thus, although it is true the Tribunal did not ask the applicant about the wound he claimed in the post-hearing statement was inflicted on him by the creditor, it is not arguable that the Tribunal made any error by not asking the applicant a question about it because the applicant had not claimed at or before the hearing that he had been assaulted by a creditor.

   [5] CB99, [19]

1. The second claim the applicant may be taken to make is one I understood the applicant had made at the hearing before me, namely, that the Tribunal interrupted the applicant and prevented the applicant from presenting what he wanted to say about his case. The applicant does not identify what he claims the Tribunal prevented him from saying or presenting to the Tribunal. For that reason alone, it is not arguable that the Tribunal did in fact interrupt or otherwise prevent or hinder the applicant from stating or presenting what he wanted to state and present to the Tribunal in support of his claims for protection. Further, in the absence of a transcript of the hearing before the Tribunal, it is not arguable that the Tribunal did any of the things the applicant claims it did during the hearing.

2. Finally, I need to refer to the second of the two affidavits I described above, and in particular the hospital record annexed to that affidavit. There is no suggestion that the applicant provided that record to the Tribunal, and for that reason alone it is not arguable the Tribunal made any jurisdictional error by not considering it. It may be relevant to note, however, that even if the medical record had been provided to the Tribunal, it could not reasonably have been interpreted as supporting the applicant’s claim that the laceration set out in the record was due to any violent act by a creditor; and that is because the injury for which the record states the applicant received treatment was inflicted accidentally by a person’s elbow on the lip.

Conclusion and disposition

1. None of the grounds or submissions on which the applicant relies discloses any jurisdictional error by the Tribunal. I propose, therefore, to order that the application be dismissed.

2. I will deal with the question of costs when I pronounce my order dismissing the application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  17 July 2019