RBKG v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1210

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

RBKG v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1210  

File number(s):	PEG 249 of 2024
Judgment of:	JUDGE STREET
Date of judgment:	30 October 2024
Catchwords:	MIGRATION – extension of time application – protection visa- oral adjournment application refused- insufficient merits on impressionistic basic to warrant extension of time- extension of time application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	61
Date of hearing:	30 October 2024
Place:	Perth
Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the First Respondent:	Ms B Rayment of Sparke Helmore
Solicitor for the Second Respondent	No appearance

ORDERS

PEG 249 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

RBKG

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	30 OCTOBER 2024

THE COURT ORDERS THAT:

1.The applicant’s oral for an adjournment is dismissed

2.The name of the first respondent is changed to “Minister for Immigration and Multicultural Affairs”

3.The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed

4.The applicant is to pay the first respondents costs fixed in the sum of $4,189.39.

THE COURT NOTES THAT:

A.The Court will not enter up these orders on the Commonwealth Court Portal until emailing the applicant a copy of the Court’s written record of oral published reasons.

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).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE STREET

1. These proceedings for an extension of time were commenced on 17 July 2024 under s 477 of the Migration Act 1958 (Cth) (“the Act”), in respect of the decision of the Administrative Appeals Tribunal (“Tribunal”) made on 21 March 2024 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant is currently in immigration detention and orders were made on 18 September 2024 fixing the matter in terms of the application for an extension of time for hearing today at 2.15 pm.

3. The applicant has appeared and has asked for more time.  The applicant wants another six to eight weeks for the purpose of trying to obtain legal representation and obtain a lawyer.

4. On 5 September 2024 a Registrar made orders in relation to the provision of a court book and submissions. The applicant said that he has not had enough time to obtain a lawyer and wants an adjournment. Ms Rayment, on behalf of the Minister, opposed the adjournment and identified when the proceedings were commenced and submitted that the applicant has had ample time to obtain legal representation if he was able to do so. The applicant is not entitled to legal representation.

5. The Court accepts the submission of the Minister that the applicant has had sufficient time if he was able to obtain legal representation.  The Court is not satisfied that there would be any utility in granting an adjournment.  The Court is not satisfied an adjournment is warranted in the interest of the administration of justice. 

6. On 17 July 2024, the applicant filed an application for an extension of time under s 477 of the Act which, relevantly, complied with the requirements of s 477(2)(a) of the Act in respect of a decision the Tribunal made on 21 March 2024 affirming the decision of the delegate not to grant the applicant a protection visa.

7. The application for an extension of time was filed 83 days out of time.

8. At the commencement of the hearing, the applicant identified that he wished to obtain an adjournment.  The Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the explanations given by the Court.  The applicant was then heard on his application for an adjournment and the Court dismissed the oral application for an adjournment.

9. The Court took the applicant through the proposed grounds in the application and the further proposed two grounds identifiable from his affidavit as well as his explanation for the delay. 

   BACKGROUND

10. The applicant is a citizen of Serbia who arrived in Australia on 27 May 2006 holding a partner subclass 309 visa.  The applicant was subsequently granted a partner subclass 100 visa in 2009 (“subclass 100 visa”). 

11. On 14 May 2019 the applicant was convicted of an offence and sentenced to imprisonment for three years.

12. On 23 June 2021, the applicant's subclass 100 visa was cancelled under s 501 of the Act and he was detained in Yongah Hill Immigration Detention Centre.

13. On 22 June 2023, the applicant applied for a protection visa because he claims to have left Serbia because:

    (a)He had unpaid debt to a criminal organisation who threatened him;

    (b)He was a Roman Catholic and would face discrimination and;

    (c)He would be conscripted again.

14. On 27 July 2023, the department requested further information from the applicant about his claims. No response was received and the delegate, on 8 August 2023, refused the grant of a protection visa not being satisfied that the applicant met the criteria under s 36(2)(a) or s 36(2)(aa) of the Act.

15. The applicant applied for review on 14 August 2023. 

16. The Tribunal invited the applicant to attend a hearing scheduled for 26 September 2023 and the applicant also attended resumed hearings on 21 November 2023 and 1 February 2024.

17. On 21 March 2024, the Tribunal affirmed the delegate's decision.

    TRIBUNAL’S DECISISON

18. The Tribunal summarised the applicant's written claims and identified what occurred before the delegate. The Tribunal referred to the applicant attending an oral hearing and referred to the applicant returning to Serbia at the age of 18 to complete his compulsory military service and that his parents purchased a farm in Serbia where the applicant and his brother lived whilst his parents remained in Austria.

19. The applicant referred to starting a business and meeting an Australian citizen in 2005. 

20. The applicant identified one of the reasons he left Serbia was because his business was failing and he wished to leave because of a criminal group. The applicant identified the group as Firma located in a particular city in Serbia.  The applicant alleged that he had heard through his brother and friends that you could borrow money the group and the applicant formed a plan to borrow money and invest.  The applicant maintained that he borrowed money twice in two amounts and had to pay interest on the loan.  However, the applicant could not remember what the interest rate was.  The applicant contended the rate was very high but described the interest as more like a bank loan.

21. The applicant was taken through the process to obtain the funds and contended that he did not spend the loan straightaway but then started spending it on fun.  The applicant identified that he made no repayments on the loan and that nothing has been paid back and said that the lenders expected to be repaid in 2006 and that, to the best of his recollection, was supposed to be paid back in 12 months with interest.

22. The applicant alleged he got a phone call from a lady because he was later overdue in making the payment and he was told to bring the money back.  The applicant alleged he did not know what to do and was in trouble because he could not repay the loan. 

23. In relation to whether the applicant was threatened, he stated two people knocked at his front door, when he opened the door, they pushed him inside and started talking to him and asserted they wanted the money now. The applicant asserts the men started taking stuff from the house and that he lied to them and said he would get the money next week. The applicant alleged he was pushed back onto his bed and was screaming, and they were screaming at him that he needed to pay the money back and if they came a second time, they would kill him.

24. The applicant confirmed his partner had already left to return to Australia and that he decided to go to Australia because he could get a job and that he would not be able to find work in Austria. 

25. The applicant alleged, in the five months before he left Serbia in May 2006, he hid with a friend in a particular city for a couple of weeks and was afraid to go back home and had asked a neighbour to watch the house. The neighbour told the applicant that he had not seen anyone, and the applicant confirmed by the end of January he was back living at the farm.

26. In relation to whether there are any further interactions, the applicant said in March or April 2006 he was slapped in the face and told the money had to be repaid and so his life was threatened with statements such as, "If you don't pay back, you know what happened to other people, you're dead."  The applicant said it was his belief that this was his last warning. 

27. The applicant was asked about going to the police and was told they could not do anything until something happened.  The applicant said the second occasion was the last time he saw anybody regarding his unpaid debt. 

28. The applicant has lived in Australia for 10 years with his wife as a couple and he has three children, two with his ex-wife, a daughter aged 16 and a son aged 14 and one child born in 2019 with his then girlfriend.  All of the applicant's children are Australian citizens.

29. The applicant identified expressing remorse in relation to his conviction and feared that if he went back to Serbia, they would find him, and he would be in significant trouble.  The applicant feared a violent death at the hands of his lenders and alleged that no one in Serbia would be safe. 

30. The applicant was asked about his fear on account of his Roman Catholic faith and that he could be denied or abused by members of the public if his faith was known.

31. The applicant was asked about other issues and fears about returning to Serbia and he referred to the situation with Kosovo and the fear of being called up by the army. 

32. The applicant also asserted that, as a returnee from a Western country, he would be perceived to have resources, and it would be very hard for him, and he would not be able to find work.  The Tribunal correctly identified the relevant law and provided detailed comprehensive reasons in determining that the decision of the delegate should be affirmed.

33. The Tribunal referred to country information and, in relation to the analysis of the applicant's fears in respect to moneylenders, found the applicant's core claims to be coherent.

34. The Tribunal provided reasons as to why the applicant's fears in respect of those core claims were speculative. The Tribunal accepted the possibility that the applicant borrowed money and failed to repay the same and received telephone calls and was visited twice at his farm.  The Tribunal observed that central to his claim was that he was assaulted and threatened with violence and that he identified a particular group. The Tribunal referred to country information in respect of that group and the practice described as loan sharking which was described as being widespread in Serbia. 

35. The Tribunal placed no weight on the applicant's stories that he had heard or read on Facebook.  The Tribunal identified that there was no corroborative evidence of the encounters advanced by the applicant in contrast to his core claims and found aspects of his oral evidence to be vague and generic and lack the spontaneity of natural recollection. 

36. The Tribunal summarised the problems with two significant concerns, first, in relation to the specific moneylenders and not being able to point to any examples of Firma dealing with a bad debt and, secondly, the Tribunal had not been able to identify, nor has the applicant provided, country information suggesting violence or killings by moneylenders is other than remote and speculative.

37. The Tribunal identified, in conjunction with those concerns, there being no corroborative evidence that the applicant experienced violence or having received threats of violence or death from moneylenders.  There is no country information before the Tribunal that would conclude that the threats as described by the applicant occurred, even as a possibility.  Accordingly, the Tribunal rejected the applicant's evidence that he was threatened with violence and death by agents of moneylenders. 

38. The Tribunal, having considered the evidence, found that the risk of the applicant suffering serious or significant harm from moneylenders, should he return to Serbia now or in the reasonably foreseeable future, is no more than speculative at most, and falls well below the level of a real chance of serious harm or real risk of significant harm.

39. The Tribunal referred to the applicant's evidence in respect of being of the Catholic faith and identified country information.  The Tribunal found that no country information reviewed, suggested that Catholics in Serbia face a real chance of serious harm or a risk of significant harm. The Tribunal was not satisfied that the applicant faces any real chance of discrimination amounting to serious harm now or in the reasonably foreseeable future on account of his Catholic religion. The Tribunal was not satisfied that any discrimination would amount to a real risk of harm within the definitions of torture and cruel or inhumane or degrading treatment or punishment.

40. The Tribunal turned to the applicant's claim of fear of compulsory military service and his reference to the situation in Kosovo.  The Tribunal found that claim to be speculative and without any basis in fact.  The Tribunal found there is no real chance or real risk the applicant will face serious or significant harm in Serbia on account of his potential compulsory military service should he return to Serbia now or in the reasonably foreseeable future.

41. The Tribunal turned to the challenges the applicant may face returning from a western country and identified that it had not found any country information that there is a real chance or a real risk the applicant will face serious or significant harm in Serbia as a perceived wealthy returnee or as a returnee from a western country. The Tribunal accepted the applicant does not wish to return to Serbia and found that he did not have a fear for one of the five reasons within s 5J(1)(a) of the Act.

42. The Tribunal referred to country information and was not persuaded the applicant would be subjected to significant economic hardship in Serbia that threatens his capacity to subsist.  The Tribunal found the applicant does not have a well-founded fear of persecution in Serbia based upon a claim of economic hardship or inability to work.

43. The Tribunal turned to the issue of complementary protection and also took into account that there is no evidence that the applicant's convictions are or would become known by anyone in Serbia beyond his immediate family and referred to other country information. The Tribunal found there was no evidence to suggest the applicant would be affected by the proposed special measures law should he return to Serbia now or in the reasonably foreseeable future. The Tribunal also concluded that its enforcement would not amount to serious or significant harm.

44. Having considered the applicant's claims individually and cumulatively, and the country information and the personal circumstances of the applicant, the Tribunal found that there is no real chance the applicant will suffer persecution on grounds of race, religion, nationality, membership of a particular social group or political group, or any other reason if he returns to Serbia now or in the reasonably foreseeable future.

45. The Tribunal found the applicant does not have a well-founded fear of persecution and did not meet the criteria in s 36(2)(a) of the Act. The Tribunal found that there are no grounds to suggest the applicant will be subject to significant harm for any reason if he returns to Serbia and found the applicant did not satisfy the complementary protection criteria on s36(2)(aa) of the Act and affirmed the decision under review.

46. The Court notes that there was a recommendation by the Tribunal for ministerial intervention. 

    GROUNDS FOR REVIEW

47. The proposed grounds in the application are as follows:

    1.The tribunal was given specific details regarding when I was violently attacked and seriously threatened by illegal debt collectors they who came into my house.

    2.The tribunal failed to consider claims about the mental health challenges that I have endured.

    3.My statement was not taken seriously by the tribunal because I could not present strong evidences for my grounds.

48. The further proposed fourth and fifth grounds as identified in the submissions of the Minister in paragraph 38 are as follows:

    4.I believe that by reasons of error, the Administrative Appeals Tribunal (AAT) failed to give any weight to any of the information that was provided to them regarding my claim for a protection finding under the criterion set out in s 36(2)(a).

    5.The Administrative Appeals Tribunal failed to have been satisfied that there is “no other reason” why the decision of the delegate of the Minister for Home Affairs should have been revoked irrespective of all of the information that was provided the tribunal, including that:

    a.That I have not many evidences to support my claims except I never travelled back since I arrived to Australia and that I hold a genuine fear for my life as a result of the threat and harm that I had previously faced

    b.That the legal consequences of the decision is that I would be returned to Serbia.

    c.That there is a real chance that I will face harm or persecution if I am returned to Serbia and my life is in serious danger.

    d.That if I am removed from Australia, I will be on the street without any money and accommodation. In Serbia is no support for homeless people and I have no any family member in Serbia.

    APPLICANT’S SUBMISSIONS

49. The applicant, in his oral submissions, identified disagreement with the Tribunal's decision and that he believed it was wrong and made reference to having three children in Australia who would be affected by his return to Serbia.

50. Nothing said by the applicant in his oral submissions identified any arguable ground of jurisdictional error at an impressionistic level.  The applicant's oral submissions, in substance, amounted to an invitation to an impermissible merits review or to determine the matter on compassionate or discretionary grounds and the Court has no power to do so.

    DETERMINATION OF EXTENSION APPLICATION

51. The application for an extension of time complies with the first requirement in s477(2)(a). The Court turns to the merits at an impressionistic level in relation to s477(2)(b) and the applicant’s explanation for the delay. In relation to proposed ground 1, the Tribunal provided logical and rational reasons in support of its adverse finding in respect of the applicant being violently attacked and seriously threatened, those reasons included taking into account country information, and the vague and genetic evidence of the applicant that was not spontaneous, the absence of corroborating evidence. No arguable case of relevant error revealed by proposed ground 1.

52. In relation to proposed ground 2, the Minister correctly identified that there was no claim to fear harm because of the applicant's mental health and that the two psychologists' reports concern the risk of re-offending and did not concern any claim to fear harm on return to Serbia.  No arguable case of jurisdictional error is proposed by proposed ground 2.

1. In relation to proposed ground 3, it is apparent that the Tribunal engaged in a careful comprehensive review of the applicant's claims and the country information and evidence before the tribunal.  Proposed ground 3, in substance, identifies a disagreement with the adverse findings by the Tribunal and does not identify an arguable case of relevant errors.

2. In relation to proposed ground 4, it was a matter for the Tribunal to determine what weight to give to the evidence and country information before it. The applicant carried the burden, under section 4AAA of the Act, and no arguable case of relevant error is raised by proposed ground 4.

3. Proposed ground 5 in substance, reflects a disagreement with the adverse findings by the Tribunal and does not identify an arguable error at an impressionistic level.  The Tribunal's reasons correctly identify the relevant law and on the face of the Tribunal’s reasons the Tribunal appears to have correctly applied the relevant law. On the material before the Court the Tribunal appears to have complied with its statutory obligations in the conduct of the review. At an impressionistic level the adverse findings that were open for the reasons given by the Tribunal that have an evident unintelligible justification.

4. The applicant's explanation for the delay in his application identified that he was not able to find legal representation, that he was not able to prepare the application himself without instructions and did not know how to write an affidavit.  It may be said that the applicant's explanation for the delay is not entirely satisfactory. The applicant made reference to ministerial intervention but that was a matter recommended by the Tribunal, not an application actually made by the applicant. 

5. Ms Rayment, on behalf of the Minister, submitted that the applicant's explanations were entirely unsatisfactory. The Court does understand the difficulty faced by the applicant and would not, in this case, dismiss the application for an extension of time on the ground of inadequate explanation in determining whether or not the criteria, under s 477(2)(b) of the Act, is met. The more important and determinative factor in this case, at an impressionistic level are the merits of the proposed grounds as addressed above.

6. For the reasons the Court has identified, the Court is not satisfied that the three proposed grounds in the application or the further two proposed grounds in the affidavit identify a sufficiently arguable case on the merits to satisfy the Court that it is necessary in the interest of the administration of justice to extend time under s 477 of the Act.

7. The Court finds at an impressionistic level, none of the five proposed grounds have sufficient merit to satisfy the Court that it is necessary in the interest of the administration of justice to extend time under s 477 of the Act.

8. Accordingly, the Court finds that the application for the extension of time should be dismissed. Costs should follow the outcome and accordingly the first respondent is entitled to its costs

9. It is for these reasons the Court makes the above orders.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       13 November 2024