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[2022] FCA 1140
Federal Court of Australia
2022-09-27
Mr J, Goodman J
Original judgment source is linked above.
introduction 1 The appellant is a citizen of the Republic of Korea. On 12 November 2018, he lodged an application for a protection visa. 2 On 26 November 2018, a delegate of the first respondent made a decision under s 65 of the Migration Act 1958 (Cth) to refuse to grant the appellant a visa. On that same day, the appellant lodged an application for review of that decision by the Administrative Appeals Tribunal. On 5 April 2019, following hearings on 22 February and 8 March 2019, the Tribunal affirmed the delegate's decision and published its Reasons for doing so. 3 On 23 May 2019, the appellant filed an application for judicial review of the Tribunal's decision with the then Federal Circuit Court of Australia. On 11 December 2019, the primary judge dismissed that application with costs: BUG19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3503 (J). The appellant appeals from the decision of the primary judge.
The tribunal PROCEEDING 4 A central issue on this appeal is whether the Tribunal misunderstood the nature of the protection claim that the appellant was making and thereby failed to consider a representation that he had made. Thus it is necessary to understand the representations made by the appellant to the Tribunal and the Tribunal's treatment of those representations. 5 The appellant lodged with his protection visa application a detailed statement of 30 paragraphs over six pages. He also gave oral evidence at the hearing, which is described at paragraphs [39] to [65] of the Reasons. The essential elements of that evidence (save for the reasons why he feared being returned to Korea, to which I will return below at [10] to [15])) were as follows: (1) his business in Korea came under financial stress (statement (i), (j); Reasons [16] to [18], [43]); (2) he borrowed funds from a Mr J (adopting the nomenclature used by the primary judge) at an exorbitant interest rate (statement (k); Reasons [18], [43] to [44]); (3) he was unable to repay the loan (statement (l); Reasons [19], [43]); (4) Mr J and his associates detained him and made him work for them in an illegal money lending business (statement (n), (o); Reasons [21], [22], [24], [43], [45]); (5) he escaped, was recaptured and escaped again (statement (p), (q); Reasons [23], [24], [45]-[46]); and (6) following his second escape, he reported to police the illegal activities of Mr J and his associates (statement (q); Reasons [24], [82]). 6 The Tribunal accepted the appellant's evidence that his business in Korea came under financial stress, that he borrowed funds from Mr J at an exorbitant interest rate and that he was unable to repay the loan (Reasons [73], [92]) 7 The Tribunal did not accept the appellant's evidence that Mr J and his associates detained him and made him work for them in an illegal money lending business (Reasons [76]-[80], [92]]); or that he escaped, was recaptured and escaped again (Reasons [80]). 8 Of particular importance is the Tribunal's finding that it did not accept that the appellant reported to police the illegal activities of Mr J and his associates. At Reasons [87], the Tribunal stated: The applicant also claims that he and a friend informed the police about Mr J and others involvement in criminal activity in November 2012. He claims that soon after his friend committed suicide due to the stress of the situation. Again, the Tribunal considers that had the applicant informed on Mr J and his associates and genuinely feared for his life he would have utilised the opportunity to go to the USA to avoid being harmed. For this reason, and due to the credibility concerns discussed above the Tribunal is not prepared to accept the applicant made a complaint to the police about the criminal activities of Mr J or others. (emphasis added) 9 At paragraph [92] of its Reasons, the Tribunal reiterated its finding that it did not accept that the appellant reported to police the illegal activities of Mr J and his associates. 10 I turn now to the evidence and findings as to why the appellant feared being returned to Korea. 11 At paragraph bb of his statement, the appellant stated: bb. I fear if I returned to South Korea now or in a foreseeable future, I would face serious or significant harm from Mr J and his goons for the following reasons: • [Mr J] and his goons engaged in illegal money lending business and they are regarded as loan shark actually more than it. He is famous contract violence gang. and I fear I would be targeted and killed due to my loan I got from them with unreasonable interest. They calculate interest in an exorbitant way. • [Mr J] and his goons are angry on me and think that I deceive them and wanted to teach me a lesson by taking revenge against them. • Even if I could survive from them, they may force to me illegal act same as previous time, I really don't want to be their puppet for their crime action. • Until I got trouble with my business by international exchange issues, I've been ordinary as a man, husband, father. I never break any of law, social policy, and rules before I was in trouble. All of current situation is from my mistake, but the other hand, I'm feeling I'm still in nightmare because all these happening were not my intention and were not cause from me. Now I have no place or people to ask help in Korea. • Due to my stay in Australia, I would be considered as a wealthy person. 12 At paragraph [34] of its Reasons, the Tribunal stated: 34. He fears that if he returns to South Korea he will face serious or significant harm from Mr J's goons for the following reasons: a. He has a debt to Mr J which is continually earning high interest. b. Mr J and his goons think that he deceived them. c. He may be forced to work for them on their illegal activities again. d. There is no place or no person he can go to for help in South Korea. e. Due to his stay in Australia he will be considered a wealthy person. 13 At paragraph [52] of its Reasons, the Tribunal stated: The [appellant] testified that if he returns to Korea the people he reported to the police in November 2012, Mr J and others, will seek revenge and harm him. He said that he left Korea in 2014 because he feared those people… 14 At paragraphs [94] to [106] of its Reasons, the Tribunal considered the risk of future harm to the appellant if he were to be returned to Korea. That analysis was focussed on the potential risk to the appellant from Mr J and his associates by reason of the appellant's failure to repay the loan. It did not include analysis of the risk of future harm to the appellant from Mr J and his associates by reason of the appellant having informed the police of their activities. 15 The Tribunal expressed its conclusion at paragraphs [107] to [110] of its Reasons: 107. Having carefully considered the claims individually and cumulatively, the Tribunal finds that there is not a real chance the applicant will be seriously harmed on return to Korea arising from a debt to a money lender or for any other of the reasons claimed. Accordingly, the Tribunal finds he does not have a well-founded fear of persecution if he returns to Korea now or in the reasonably foreseeable future. Accordingly the applicant does not satisfy the criterion at s.36(2)(a) of the Act. 108. The Tribunal has also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa) of the Act. The Tribunal notes that the complementary protection provisions provide that there is taken not to be a real risk of significant harm if 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. For the same reasons already articulated the Tribunal finds that if the applicant fears significant harm from Mr J or anybody else he can access protection from the police and other authorities which will reduce the risk of him being significantly harmed to a level which is below the level of a real risk. Similarly, the Tribunal is satisfied on the basis of independent country information that there is not a real risk the applicant will suffer any significant harm if he is jailed for reason of breaching his probation in Korea. On this basis the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Korea there is a real risk that he will suffer significant harm for the reasons claimed. Accordingly the applicant does not satisfy the criterion at s.36(2)(aa) of the Act. 109. The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act. 110. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2). (emphasis added)
THE proceeding in the court below 16 On 26 June 2019, the appellant filed an amended application. The grounds advanced therein are reproduced (without alteration) below: Amended Grounds of Application 1. Applicant never had a real and meaningful hearing because the Tribunal being unfair. a. The Tribunal imputed her mistake in regards to wording into applicant, then Tribunal considered applicant as uncredited. b. The Tribunal did not give a chance to applicant, applicant could explain or correct mistranslation by interpreter. c. The Tribunal considered that witnesses as valueless by unreasonable reason. And dismissed legit claim of applicant. 2. The Tribunal had judicial error. The Tribunal misplaced the reason why applicant seek protection. As a result, she made a decision with misplaced reason. 3. There was amount mistranslation amount to a material the breach of s425 jurisdictional error established. 17 Of these grounds of review, only the second ground is the subject of a ground of appeal. The primary judge's reasoning with respect to this ground was as follows (at J[40] to [41]): 40. At the final hearing on 14 November 2019, the applicant sought leave to reagitate Ground 2 in his amended application which (as noted above) is in the following terms: 2. The Tribunal had judicial error. The Tribunal misplaced the reason why applicant seek protection. As a result, she made a decision with misplaced reason. 41. At the show cause hearing, I found no substance in that ground and, on hearing further from the applicant and counsel for the Minister on the issue at the final hearing, I confirm that view. The Tribunal did not misunderstand the applicant's claims for protection. His claims are reproduced in the court book. The Tribunal recites those claims accurately at [34] of its reasons. The Tribunal discussed the claims at the hearing. Importantly, at [71], the Tribunal stated as follows: The Tribunal found the applicant to be a difficult witness at both hearings. His evidence about various aspects of his claims was often disjointed, confused, inconsistent and difficult to follow. Noting this, the Tribunal summarised its understanding of the key aspects of the claims presented during the first hearing at the commencement of the second hearing and the applicant agreed, with a few exceptions, that the Tribunal's reading of his claims was essentially correct. The applicant did not suggest that there was any problem with the quality of the interpreting during the second hearing. 18 The primary judge also dealt with an allegation that the Tribunal member had demonstrated pre-judgment amounting to bias, despite this not being a ground of review. At J[42] the primary judge stated: In his submissions in reply, the applicant asserted that, at the Tribunal hearing, the Tribunal member demonstrated prejudgment amounting to bias. He asserted that at various points during the hearing, the Tribunal was dismissive of his claims and evidence and that he had been upset by this. The Minister had tendered the sound recording of both hearings conducted by the Tribunal. I enquired of the applicant whether he was expecting me to listen to the full sound recording of both hearings in order to test his assertion. He stated that this would not be necessary because he could identify from the sound recording (which he also had) the particular points of concern. I provided the applicant with the opportunity to submit within 14 days the particular points during either hearing which gave him concern. However, he did not take up that opportunity. In the circumstances, I have not listened to the balance of the sound recording.
The Appeal to this court 19 The grounds of review advanced before the primary judge are set out at [16] above. The grounds of appeal (including the orders sought) to this Court are as follows (without alteration): Grounds of appeal 1. Please review the decision and order for my case of federal circuit court sydney on 11 December 2019. 2. Please cancel or hold to pay cost for respondent by federal circuit order. 3. In order to consider for ground of appeal 1, please review the decision of AAT for my case on 29 April 2019, and my appeal to federal circuit court on 26 June 2019. Orders sought 1. The Tribunal had judicial error. 2. The Tribunal misplaced the reason why applicant seek protection. As a result, she made a decision with misplaced reason. 3. The Tribunal being which applicant assert indicate bias, or at least unfairness. 20 Thus, the first and third grounds of review before the primary judge are not the subject of a ground of appeal, on any view of the grounds of appeal. On a benevolent reading of the grounds of appeal, the second ground of review - that the Tribunal misplaced the appellant's reason for seeking protection - is the subject of a ground of appeal, as is the allegation of bias which the primary judge determined. 21 The appellant provided no written submissions to the Court. In his oral submissions, the appellant addressed only his contention that the Tribunal misplaced his reason for seeking protection. As a result, I regard the allegation of bias as having been abandoned, but note for completeness that I discern no error in the primary judge's determination on this issue. 22 In his oral submissions, the appellant argued that the Tribunal had understood that he sought protection because he feared harm from Mr J and his associates by reason of his unpaid debt, when in truth the reason he had advanced for such protection was that he feared harm from Mr J and his associates because he had provided information to the police in relation to Mr J. 23 It is well-established that a decision-maker must read, identify, understand and evaluate the representations that have been made to it: see Plaintiff M1/2021 v Minister for Home Affairs [2020] HCA 17; (2020) 400 ALR 417 at 425-427 [24]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ). 24 I am satisfied that the appellant did make a representation to the Tribunal that he feared harm if he were to return to Korea from Mr J and his associates by reason of his conduct in informing the police of Mr J's activities. Whilst such a representation was not included in paragraph bb of the appellant's statement, it is clear from paragraph [52] of the Reasons (extracted at [13] above) that such a claim was made in oral evidence at the hearing before the Tribunal. 25 It is also clear from the Reasons that the Tribunal did not refer to this representation as part of its assessment of the risk faced by the appellant if he were to return to Korea. However, it does not follow that the Tribunal failed to consider it. The proposition that the appellant was at risk because of his conduct in informing the police of Mr J's activities rests on the premise that such conduct occurred. The Tribunal expressly rejected that premise at paragraphs [87] and [92] of the Reasons (see [8] and [9] above). It was thus unnecessary for the Tribunal to go on to consider the likely risk to the appellant resulting from an event which the Tribunal did not accept had occurred: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604 [47] (French, Sackville and Hely JJ). 26 This may be contrasted with the position with the risk of retribution due to the failure to repay the debt - the Tribunal accepted the underlying premise that the debt had not been repaid and went on to consider the risk to the appellant as a result.
Conclusion 27 For the above reasons, the appeal should be dismissed. The appellant should pay the first respondent's costs of the appeal. 28 The first respondent seeks a lump sum costs order in the sum of $6,725.53. His application for such an order is supported by an affidavit of Ms Maria del Carmen Juarez, a solicitor in the employ of the first respondent's solicitor, affirmed on 31 March 2022. The Court's discretion with respect to costs is broad and includes the making of a lump sum order for costs. Such an order is appropriate given that: it will save the parties the time and costs of a taxation process; the costs appear to be proportionate to the complexity of the issues raised in the proceeding; and the amount sought is less than the amount that could be claimed in a short form bill for an appeal involving a migration decision that is dismissed after hearing ($7,241 as set out in the Federal Court Rules 2011 (Cth), Schedule 3, Item 15). 29 I will make orders accordingly. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.
BUG19
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs