AAE18 v Minister for Home Affairs [2019] FCA 752

FEDERAL COURT OF AUSTRALIA

AAE18 v Minister for Home Affairs [2019] FCA 752 Appeal from: AAE18 v Minister for Home Affairs & Anor [2018] FCCA 3459

File number: NSD 2275 of 2018

Judge: YATES J

Date of judgment: 21 May 2019

Date of publication of reasons: 27 May 2019

Catchwords: MIGRATION – application for leave to appeal – refusal to grant protection visa – failure to particularise any asserted error made by the Federal Circuit Court or the Administrative Appeals Tribunal – application dismissed

Legislation: Federal Court of Australia Act 1976 (Cth), s 24(1A) Federal Circuit Court Rules 2001, r 44.12(1)(a) Migration Act 1958 (Cth), ss 5J(1)(a), 36(2)(aa)

Date of hearing: 21 May 2019

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 Applicant: The Applicant appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Ms K Evans of Sparke Helmore

ORDERS NSD 2275 of 2018 BETWEEN: AAE18 Applicant

AND: MINISTER FOR HOME AFFAIRS First Respondent ADMINISTRATIVE APEALS TRIBUNAL Second Respondent

JUDGE: YATES J DATE OF ORDER: 21 MAY 2019

THE COURT ORDERS THAT: 1. The application for leave to appeal filed on 7 December 2018 be dismissed. 2. The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J: 1 On 27 November 2018, the Federal Circuit Court of Australia (the Federal Circuit Court) dismissed the applicant's application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001. The Tribunal's decision affirmed a decision of a delegate of the first respondent—then the Minister for Immigration, now the Minister for Home Affairs (the Minister)—to refuse the applicant a protection visa. 2 The applicant wishes to appeal from the Federal Circuit Court's judgment. However, as the judgment is interlocutory in character, leave to appeal is required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 3 The application is supported by an affidavit made by the applicant on 7 December 2018. In that affidavit, the applicant says that she does not agree with the Tribunal and Federal Circuit Court decisions. She says that she proposes to seek "further legal advices" once she obtains a transcript of the Tribunal and Federal Circuit Court hearings. She also states that she still fears persecution in her home country of Malaysia. 4 In her application for leave to appeal, filed on 7 December 2018, the applicant simply states: I still rely upon the grounds and particulars stated in my Application for Federal Circuit Court. 5 Plainly, this statement does not identify any appealable error in the judgment below. 6 The draft notice of appeal annexed to the applicant's affidavit contains one ground, expressed as follows: The Federal Circuit Court erred in finding there was no jurisdictional error in the AAT decision and also Judge erred in dismissing my Federal Circuit Court Application. I will file the Particulars of the grounds in my Amended Notice of Appeal/Court Submissions upon receiving a copy of the Transcript of his Honour's reasoning. 7 Once again, this ground does not identify appealable error in the judgment below. Further particulars of the ground or grounds on which the applicant seeks leave to appeal have not been provided. 8 The applicant has not filed a written outline of submissions, even though, on 17 January 2019, she was ordered to do so. 9 The Tribunal in its Decision Record notes that in her protection visa application, the applicant said that she departed Malaysia because she found it difficult to find a job that paid her enough money to meet her daily expenses. The applicant also said that she departed Malaysia due to the economic and political situation. She claimed that if she returned to Malaysia she will face financial hardship due to the Malaysian economy. 10 The applicant expanded on her claims in a letter sent to the Tribunal: 9. In a letter to the Tribunal, received 8 November 2017, the applicant stated that she came from a low to medium average class family in a rural area near Kuala Lumpur. Her family comprises her widowed mother and married brother and sister. The applicant was the sole bread winner for her mother. She worked as a restaurant general worker/cleaner with a monthly salary of 500 ringitt. She lost her restaurant job when the owner sold the business. As she is not highly educated and without much work experience she had a hard time to find a job. She borrowed from her siblings to pay for rent and basics. She borrowed 10000 ringitt from illegal money lenders and they asked for payment of interest of 500 ringitt monthly. She borrowed from relatives and friends to pay the interest. In January 2017 her situation became so serious, as the interest payments were delayed, she and her mother made excuses to the money lenders who got angry. They swore at her over the phone and used aggressive language to her mother. One day the money lender entered their house by force and tried touching her in front of her mother asking for the money owed. They warned her not to go to the police for any reason as it would put their lives in danger. Her mother was worried about her safety and forced her to go Australia. 11 At the Tribunal hearing, the applicant elaborated on her claims: 12. When asked why she does not want to return to Malaysia she said that she borrowed money for interest and could not pay it back and they started to harass her. They called her and started talking to her in bad and vulgar words. They were asking her to come and sleep with them at night. They are calling her on phone. They came to their home and put a hand on her and her mother was embarrassed. Her mother is a sick person so her mother was scared because they may rape her and kill her and it is a danger to her life. Her mother told her to go somewhere and save her life so with the help of her relative she came to Australia. 13. She did not report this to the police as she cannot go on the road and they might come and threaten and kill her. Without them knowing, she sold her motor bike and she came to this country. When asked why she did not go somewhere else in Malaysia she said that she has borrowed from her relatives but she could not pay back the interest. 14. Ah long is the person who gave her the loan. He was Chinese. They are known as ah long and lend money for interest. He stays in their area and through somebody she got the money. She borrowed ringgit 10 000. She worked in a shop and because of the GST the owner closed the shop so she did not have work and she needs money for their expenses. She borrowed from relatives and told them once she gets job she will give them their money back. She could not pay them back. They started to ask for money. Her siblings helped her at first with money, the relatives asked for the money and she could not pay them back so she went to money lenders. She borrowed money from ah long and she had to pay nearly 500 ringgit every month. She was paying back the interest but because she did not have work, she stopped paying the money in July 2016. She came to Australia in January 2017. For 5½ months she did not pay the interest. She was paying the interest from money she borrowed and for the last 3 or 4 months they started to torture her. She was scared of the police as they would get the money and tell them. If she had reported to the police they would have bribed the police. 15. Her mother still lives in Perak but still they go to her and trouble her mother. Put nothing has happened and she responded that but her mother has told them her daughter has gone for work and will pay the money when she comes back but they continue to threaten the mother. She could not bring her here as she could not afford it. Her mother lives alone. When asked why her mother does not live with her other children she said they have married and gone with their family. 16. When asked if she has made any arrangements with the loan shark since being in Australia, she said that she has sent money only twice and she has only got a job recently. 17. Asked why she did not [advise] the Department in her PVA claims about loan sharks, she said she told her friend about her claims and her friend wrote the story down. She said she could not read and does not know what she wrote and then she told her to go to the Tribunal and explain her situation. She said that she has the Chinese person's photo. It is on her phone. He is known as Matias. 12 The Tribunal accepted that borrowers and members of their families are a particular social group. However, the Tribunal found that the essential and significant reason for the applicant's claim to fear harm was not from her membership of a particular social group or from her race, religion, nationality or political opinion. Rather, her claimed fear derived from what she had done—borrowed money and failed to repay it. 13 Even more fundamentally, the Tribunal did not accept the factual basis for the applicant's claims. It found that her claim to have borrowed money from "ah longs" who seek to harm her was an invention on her part. The Tribunal provided cogent reasons for coming to that conclusion: see [31] – [36] of the Tribunal's Decision Record. 14 The Tribunal went further to conclude: 38. Even were I to give the applicant the benefit of the doubt and accept that she has borrowed money from a loan shark and the loan shark has threatened and abused her, and if the applicant returns to Malaysia she may be required, by the loan shark to repay monies owing, I do not accept that being required to pay money owed amounts to serious harm for reasons of her race, religion, nationality, membership of a particular social group, or political opinion. 15 The Tribunal considered other matters which might be relevant to the applicant's claims. It is not necessary for me to detail those matters. It is sufficient for me to note that the Tribunal found that the applicant does not have a real chance that, if returned to Malaysia, she would suffer persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Migration Act 1958 (Cth) (the Act) and that she does not have a well-founded fear of persecution for one of those reasons. 16 Further, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm. Therefore, the Tribunal concluded that the applicant does not satisfy the requirements of s 36(2)(aa) of the Act. 17 The primary judge summarised the applicant's claims and the Tribunal's findings and conclusions. His Honour noted that the applicant raised one ground of judicial review, namely: 1. The AAT erred in law by not considering the correct social group to which the applicant belongs Particulars The applicant is a young female, ethnic minority viz Tamil, victim of shark loan, intimidated and harassed by lenders and the police failed to protect her .. The Tribunal did not consider the correct social group and the ramifications it may have on the applicant in the event of his return to Malaysia. (Errors in original) 18 The primary judge noted that, while the applicant's ground of review focused on an assertion in relation to a particular social group, the Tribunal had rejected the factual basis for her claim for protection. The primary judge noted that, in oral argument, the applicant said that "she had no problem with the rejection of that factual claim": see at [17]. 19 At [19] – [20], the primary judge said: 19. The Tribunal found that the applicant was not a witness of truth and on that basis, rejected her claim that she borrowed money from loan sharks who sought to harm her. It also accepted that the applicant was an ethnic Tamil, and considered the risk of harm to her as a Tamil woman. As for the other characteristics said to make up "the correct social group", the applicant did not claim to fear harm as a "young female" and no such claim arose squarely on the material. To the extent that the Tribunal accepted the applicant's claims, it confirmed that it considered them cumulatively. Given the nature and extent of the claims before the Tribunal, the Tribunal's reasons disclose an adequate consideration of the same and do not reveal any jurisdictional error. 20. In any event, where the Tribunal rejected the applicant's factual claims arising out of the borrowing of money, and did not consider she faced any well-founded fear of persecution, it was unnecessary for it to consider whether she would suffer harm due to her membership of a particular social group of borrowers and their families, let alone consider whether she was a member of the purported social group "young female Tamil victims of shark loans". 20 The primary judge concluded that the applicant was unable to advance an arguable case of jurisdictional error by the Tribunal. 21 At the hearing of her application for leave to appeal the applicant was not legally represented. She was, however, assisted by an interpreter. I pointed out to the applicant that while her draft notice of appeal alleged error on the part of the Federal Circuit Court, it did not identify what that error was. I invited the applicant to identify the error. Her response was that if she were to be returned to Malaysia, she "would not be able to live a peaceful life" and would "fall sick and mentally retarded". When I put to her that this did not identify an error and asked whether she could identify any error, she said: "I don't know". The applicant said that she cannot go back to her country and that she wanted to continue to stay here. 22 With respect to the ground of appeal set out in the draft notice of appeal, the Minister submitted: 17. This broad assertion of error on the part of the primary judge lacks sufficient particulars to be meaningful. The primary judge properly considered the sole ground of review as well as the applicant's oral submissions, and correctly concluded that her claims for protection were adequately disposed of by the Tribunal. The primary judge's conclusion that the application for judicial review failed to raise an arguable case for the relief sought was correct and the sole propose[d] ground of appeal is without merit. The applicant's disagreement with the primary judge's orders does not, of itself, establish appellable error. 23 I accept that submission. The applicant is unable to advance an arguable case of appealable error by the Federal Circuit Court. It follows that her application for leave to appeal must be dismissed. I certify that the preceding twenty- three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 27 May 2019