DRV16 v Minister for Immigration and Border Protection

1. The application for an extension of time in which to file and serve a notice of appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This is an application for an extension of time in which to file a notice of appeal. The applicants were a short period out of time, and the Minister objects to the extension of time being filed substantially on the basis that there is no apparent merit in the appeal. 2 The applicants are citizens of Malaysia. The first applicant arrived in Australia in December 2012, on a visitor's visa. The second applicant, the first applicant's de facto partner, arrived some months later, in 2013. In May 2014, the first applicant lodged a protection visa application, with the second applicant as a dependent applicant. A delegate of the Minister refused to grant a protection visa on 26 May 2015. On 9 November 2016, the Administrative Appeals Tribunal (Migration and Refugee Division) upheld that decision. The applicants sought judicial review before the Federal Circuit Court of Australia, and on 7 March 2018, a Judge of the Federal Circuit Court dismissed the application. 3 The claims made were summarised conveniently at paragraph 7 of the Tribunal's reasons, concerning fear in relation to loan sharks and gangsters in Malaysia approaching her to pay what was claimed to be debts of her husband, who had become addicted to drugs. The terms of paragraph 7 were as follows: In her protection visa application, [DRV16] claimed she grew up and married in Bintalu in the state of Sarawak. She claimed her husband developed a drug addiction and borrowed money from a loan shark to pay for his habit. She claimed that when her husband could not repay the interest, she made some payments but could not keep up with the loan shark's demand. She claimed that the loan sharks used to assault her and threaten to force her into some kind of work for them if she could not keep up repayments. She claimed the police, for the reason that they viewed the matter as "trivial", disregarded her complaints about threats from the loan sharks. She claimed her marriage failed and that she came to Australia to escape from her home. 4 The first applicant gave evidence before the Tribunal. The second applicant chose not to attend. The first applicant had three children with her husband in Malaysia; they apparently now live with her parents. The first applicant indicated to the Tribunal that she had not been in touch with her husband since she came to Australia, though her children remain in touch with him. And the first applicant told the Tribunal that she did not know the current situation of her husband's debts, or whether he was still addicted to drugs. 5 The Tribunal was not satisfied that the first applicant would face a real chance of serious harm, or a real risk of significant harm, from either the loan sharks or her husband, in the event of her return. The Tribunal found the claim concerning the loan sharks to be "entirely unsupported", and drew special attention to the first applicant's apparent lack of concern over any risk the children may be facing in Malaysia. The Tribunal also, while accepting the breakdown in the marriage, did not accept the drug addiction claimed of her husband, and nor did the Tribunal accept the claims concerning the loan sharks. 6 The reasons of the Tribunal were tolerably brief. In paragraphs 11 to 14, the Tribunal deals with the protection criteria under s 36(2)(a) of the Migration Act 1958 (Cth): 11. [DRV16's] claims about issues with a loan shark are entirely unsupported. The evidence she provided indicates a lack of interest in the potential for a dispute with loan sharks to affect the children she has left behind in Malaysia. I give some weight to the fact that she has expressed no fear to her family about potential risk facing her children in the event of their associating with their purportedly drug addicted father who was violent to her in the past and, when last seen, was purportedly under dire threat from loan sharks. Over all, given [DRV16's] lack of concern for her children being exposed to possible risk, I am not satisfied that the loan shark story is or was ever true. 12. I have some difficulty with the veracity of the claim about the husband's drug addiction, since [DRV16] expressed no concern or even reservations about her children socialising with him. I accept that there has been a breakdown in her marriage around the time she came to Australia but, on the evidence before me, I am not satisfied that there is any drug problem or loan shark debt problem affecting or potentially affecting her or her family. Accordingly, and especially since [DRV16] linked her husband's violent outbursts to drug addition, I am not satisfied that there is a real chance her husband will abuse her in the reasonably foreseeable future. I am also not satisfied that the claims she has made in this application are Convention-related, or that she identified a Convention-related reason for the failure of the police to assist. 13. I give weight in this matter to [DRV16] herself indicating that the claimed problem might very well have gone away. I also give weight in this matter to her claiming that she presently does not wish to return to Malaysia for the reason that she is financially supporting her children there. my [sic] cumulative impression is that she does not have a Convention-related reason for resisting return to Malaysia. 14. Having considered all of the evidence before me, I am not satisfied that [DRV16] faces a real chance of Convention-related persecution in Malaysia. Her claimed fear is not well founded. She is not a refugee. 7 In paragraphs 16 to 20, the Tribunal set out its conclusions as to the complementary protection provisions of s 36(2)(aa) of the Migration Act. 16. Having concluded that [DRV16] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). 17. Relevant to this, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33). 18. Essentially, [DRV16's] complementary protection claims rely on the same facts as the claims she presented as "refugee" claims. Having regard to the "real chance" and "real risk" tests being essentially the same, and given my findings of fact above, I find that [DRV16's] refugee claims can no more succeed as claims to complementary protection. 19. Having considered all of the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that [DRV16] will suffer significant harm. 20. Accordingly, I am not satisfied that [DRV16] is a person in respect of whom Australia has protection obligations under s.36(2)(aa). It follows that [DRW16] cannot meet s.36(2) in this instance either. 8 In the Federal Circuit Court, there were two grounds of appeal. The first was that the Tribunal refused the claims "without substantiated grounds". The ground was particularised as follows: Tribunal believes my situation has stabilized because my children dine with my husband. This fact does not prove that my husband's debts owed to loan shark has been paid off. 9 The learned Federal Circuit Court Judge indicated how he understood this as one of two arguments. The first was an assertion that there was no rational basis for the Tribunal's conclusion as to the husband's debts. The difficulty the primary judge noted though is that the Tribunal was not satisfied that there was ever such debt, for two reasons.These were that the claims about the loan shark were not supported by any corroborative evidence, and the Tribunal's view that had the risk been a real and significant one, the applicant would have left her children behind in Malaysia. 10 More importantly, if I may say so, his Honour addressed the second way of looking at the matter in [11]-[12] and made the point that it is not for the Tribunal to have rebutting evidence that a particular claim is made out; it is whether or not the Tribunal is persuaded and satisfied of the accuracy, reliability and truth of what is being put, sufficient to be persuaded or satisfied of the criteria for protection. In the end, the primary judge concluded that the reasons given by the Tribunal, at paragraph 11 of the Tribunal's reasons, provided a rational basis for its finding that the loan shark story was not true. The lack of a requirement of rebutting evidence, and the necessity for an applicant to persuade the Tribunal of the sufficient accuracy or reliability of what the claim is, was also an answer to the second way of understanding the ground. 11 Ground 2 of the application before the Federal Circuit Court was that the Tribunal did not "fully consider violence and other risks from my husband and loan sharks I will face if I return to Malaysia". At [14]-[16], the learned primary judge pointed out that these questions were directly addressed by the Tribunal, but in a way that led to a conclusion unfavourable to the applicant. That is not, as his Honour said, a failure to consider the question; rather, it is the failure to reach a conclusion that is in favour of the applicant. The primary judge concluded that there had not been established any jurisdictional error. 12 The draft notice of appeal before this Court puts forward three grounds of appeal: 1. There exits [sic] wrong application of law. The risk that the appellant will be harmed upon return to Malaysia is not properly considered. 2. My case was considered with bias. The Tribunal considered my claims with bias, not based on substantial evidence 3. There exists procedural unfairness. Some information relevant to my case was not properly disclosed. I was not given an opportunity to fully represent my claims in the court. 13 The first ground, that there has been a wrong application of law and a failure to consider the risk of harm, is met by the same considerations expressed by the primary judge: that is, that there was no failure to consider those matters. Rather, the complaint is about the conclusions that were drawn by the Tribunal. As the primary judge stated, the difficulty for the applicant is that there was a comprehensive rejection of the material put forward as such not to satisfy the Tribunal. This involved an assessment of the evidence of the applicant and the lack of convincing circumstances to persuade the Tribunal. Like the primary judge, I am not persuaded that there has been any lack of appropriate attention to the task of assessment of the material. 14 The second ground is an assertion of bias, in both the Tribunal and the Federal Circuit Court. There is no foundation put before me for any such serious allegation, and I would reject it. The Tribunal's reasons do not, on their face, raise any question of an inappropriate or unfair consideration of the matter; and the same can be said of the Federal Circuit Court. 15 The third ground of appeal is procedural unfairness. I would understand this to be a complaint as to the hearing before the primary judge. The primary judge recorded, at [7] of his reasons, that the applicant appeared unrepresented before the Court, and made no oral submissions in support of her grounds for application and review. Nor did she file any written submissions. In these circumstances, it cannot be concluded other than that the applicant had an opportunity to advance her case before the primary judge, but did not do so. Before me, these matters were repeated. 16 The difficulty for the applicants in the proceeding is that, for apparently rational and coherent reasons, the Tribunal has not accepted the material placed before it. There is no basis to conclude either that the Tribunal was biased, or that it has failed to attend to its statutory task of reviewing all the material and engaging in a full review of the delegate's decision. 17 For these reasons, I do not consider that the appeal has any real prospects of success. For those reasons, I would not extend time for the filing and service of a notice of appeal. 18 Therefore, the application for an extension of time for the filing and serving of a notice of appeal be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.