Afn17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 217

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AFN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 217

File number(s):

MLG 89 of 2017

Judgment of:

JUDGE EGAN

Date of judgment:

2 November 2021

Catchwords:

MIGRATION – Application for Protection Visa – lack of particularity in grounds of review justifying dismissal of application – no evidence adduced in support of claim of bias – no basis for claim that the Tribunal had applied the wrong test in arriving at its decision – no jurisdictional error established – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss 5H(1), 5J, 36, 477, 499

Cases cited:

WZAVW v Minister for Immigration & Border Protection [2016] FCA 760

SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1389

DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951

AID19 v Minister for Immigration & Anor [2020] FCCA 1002

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Division:

Division 2 General Federal Law

Number of paragraphs:

29

Date of last submission/s:

28 October 2021

Date of hearing:

28 October 2021

Applicant:

The Applicant appearing in person on her own behalf

Solicitor for the First Respondent:

Mr J. Simpson of Clayton Utz

Second Respondent:

Submitting appearance save as to costs

ORDERS

MLG 89 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AFN17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	1 NOVEMBER 2021

IT IS ORDERED THAT:

1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The application for extension of time filed on 16 January 2017 is dismissed.

3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7, 467.00.

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).

REASONS FOR JUDGMENT

JUDGE EGAN:

1. The applicant is a citizen of Malaysia who arrived in Australia on 15 August 2013 whilst the holder of a Subclass 601 (Electronic Travel Authority) Visa. [1] Upon expiry of such visa on 15 November 2013, the applicant remained in Australia unlawfully until 25 September 2015, when she was granted a Bridging Visa after she had applied for a Protection (Class XA) Visa.  

   [1]           Court Book (CB) p 81.

2. On 4 February 2016, a delegate of the Minister refused to grant the visa to the applicant on the basis that neither ss. 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’) had been satisfied.

3. On 1 March 2016, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.

4. On 8 December 2016, the Tribunal affirmed the decision of the delegate. On 9 December 2016, the Tribunal notified the applicant of this decision by letter. [2]

   [2]           CB 163.

5. On 16 January 2017, the applicant filed an Originating Application for Review of the decision of the Tribunal. Such application was filed four (4) days out of time. Pursuant to s. 477(2) of the Act, the Court may extend time for the filing of the Originating Application if satisfied it is in the interests of the due administration of justice to do so.

6. The applicant claims that she did not know it was a requirement to file the application for review within 35 days of the Tribunal’s date of decision. [3]

   [3]           CB 179, 184.

7. At the hearing before the Court, the applicant relied upon the following grounds of review:

   “Grounds of application

   1. The Administrative Appeals Tribunal had bias against me and did not consider my application in accordance with S91R of the Migration Act 1958. The Tribunal failed to consider my claims.

   2. The Tribunal applied the wrong test in making the decision.”

   Consideration of Claims by Tribunal

8. At [4] and [5] of its reasons, the Tribunal recorded that it had had regard to the criteria for the grant of a protection visa, as set out in s. 36(2)(a) of the Act. At [8] of its reasons, the Tribunal noted that it had had regard to the complimentary protection criterion under s. 36(2)(aa) of the Act, and the meaning and circumstances of significant harm as set out in ss. 36(2A) and (2B) of the Act.

9. At [6] and [7] of its reasons, the Tribunal respectively recorded what constituted a person as a refugee under s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.

10. At [9] of its reasons, the Tribunal recorded that it had taken into account policy guidelines prepared by the Department of Immigration, and relevant country information assessments prepared by the Department of Foreign Affairs and Trade, to the extent that such reports were relevant to the decision under consideration.

11. At [12] – [15] of its reasons, the Tribunal set out the applicant’s claims before the Department as follows:

    “[12]In her protection visa application form, [AFN17] stated that she lived all her life at the same address in Penang until coming to Australia in August 2013. She claimed to have worked continuously as a chef from July 2001 to July 2013. Her last place of employment, she claimed, was the [name omitted], where she worked from July 2009 to July 2013.

    [13][AFN17] claimed that when she started work at [name omitted], the head chef there, called [name omitted], took an interest in her and they began a relationship together about a month later. She claimed, however, that [name omitted] was a gambler and that by 2011 he was forcing her to give him her wages to help cover his habit and debts. She claimed that in December 2012 he demanded she give him all her savings, and claimed he assaulted her when she refused. She claimed she reported the assault to the police who told her they could do nothing for want of evidence or witnesses. She claimed that after this episode, [name omitted] continued to hit her to force her to give him her wages. She claimed that this was why she came to Australia.

    [14][AFN17] further claimed that she feared further harm from [name omitted] in the event of her returning to Malaysia. She claimed the authorities would not provide her with protection from him. She said she did not think she would be able to relocate within Malaysia. She said she tried several times to hide in her friend's home but was always found there by [name omitted].

    [15][Name omitted] name is erroneously given as "[name omitted]" at one point in the protection visa application form but I have taken this to be the result of oversight on the part of the person who assisted [AFN17] with her application, rather than an error or inconsistency on the part of [AFN17] herself.”

    [names of places and persons omitted]

    Consideration of Grounds of Review

12. Ground 1 of the Originating Application for Review was a claim that the Tribunal was biased against her, and that it did not consider her application or claims. The Court noted that the applicant did not rely upon any affidavit evidence at the time of the hearing before it. In particular, no transcript of the Tribunal hearing was put before the Court. The Court further noted that the applicant did not comply with an order of a Registrar of the Court made on 19 July 2017 requiring her to both file and serve written submissions prior to the Court hearing date.

13. In the absence of any evidence before the Court as to what transpired before the Tribunal, and further in the absence of any compelling written or oral submissions, the Court finds that there was no factual basis for such claim of bias. Such ground is without merit.

14. As to Ground 2 of the Originating Application for Review, the assertion that the Tribunal applied the wrong test in arriving at its decision was so entirely lacking in particularity as to be meaningless. The first respondent, and this Court, was unable to appreciate what the applicant’s complaint in fact was.

15. This Court is unable to review matters where no grounds of review are particularised. That is alone a ground for dismissal of the application for review. As was said in WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J:

    “[35] … an un-particularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.”

16. In SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1389 at [22], Farrell J said as follows:

    “[22]The second ground of appeal should be rejected.  It is well established that the fact that an appeal ground is put with a high degree of generality and lack of specificity or any real particulars is itself a sufficient basis for dismissing that ground: see WZAVW at [35] followed in BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13] (Bromwich J); CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [27] (Perry J); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20] and [24] (Reeves J); ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59] (Derrington J); DIF17 v Minister for Immigration and Border Protection [2019] FCA 1055 at [29] (Abraham J); and GSQ18 v Minister for Home Affairs [2019] FCA 2057 at [14] (Lee J).”

17. The Court finds that there is no relevant distinction between a Court of Appeal being minded to dismiss an appeal ground which had a high degree of generality and lack of specificity and particularity, and this Court dismissing a ground of review when such ground was of the same character.

18. In DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951 at [4] – [9] inclusive, this Court said as follows:

    “[4] Notwithstanding, with the greatest of respect, that this Court doubted whether it was a fulfilment of its judicial role, or the performance of a judicial function, for the court to enter upon the endeavour of attempting to elicit from the applicant particulars of the applicant’s case, and then, of necessity, recording such particulars in a coherent form and for the applicant’s benefit, the Court nevertheless attempted to do so, so as to enable the matter to proceed to a final hearing. The Court, in that regard, was concerned that it could be the subject of adverse later criticism, perhaps, for:

    a.erroneously appreciating the import of anything said by an applicant in response to the Court’s request for particulars;

    b.failing to so formulate, in writing, what was said by the applicant in a way most advantageous to such applicant;

    c.not accurately recording some of, or what the Court might have considered an irrelevant part of, the particulars orally provided to the Court by the applicant.

    [5] The Court was concerned that, in effect, it was being required to become the applicant’s advocate or adviser, at the risk of assuming all of the attendant responsibilities which that entailed. The Court was also concerned that the exercise would, in a practical sense, leave the Court open to having any subsequent decision it might make in the matter overturned on any number of grounds associated with the process of the Court:

    a.advising the applicant as to the inadequacy of the particulars of their grounds for review;

    b.asking the applicant to explain what her complaints were concerning the adverse decision she was seeking to review;

    c.        recording the answers of the applicant to the Court’s questions;

    d.evaluating such of the applicant's answers for the purpose of identifying what were or were not legitimate grounds of review;

    e.recording, in writing, what the Court considered were the applicant’s legitimate grounds for review.

    [6] In the case of Hamod v New South Wales [2011] NSWCA 375 at [309] – [316] inclusive, Beazley JA (with whom Giles and Whealy JJA agreed) said as follows:

    “[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:

    "A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'."

    [310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].

    [311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.

    [312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 ; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914.

    [313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:

    "But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant."

    [314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.

    [315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:

    "A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6."

    [316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.”

    [7] In DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240, Flick J, sitting on appeal, was there dealing with a contention that a Federal Circuit Court judge had, in that matter, failed to ensure that the hearing was fair, and that the appellant (applicant) did not “suffer a disadvantage from exercising his or her right to be self-represented”. It was further contended that the primary judge “failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court”. The contention was that it was a requirement imposed upon the primary judge to “explain in plain terms to unrepresented litigants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process” and that it is “not enough to merely say that they must demonstrate jurisdictional error”.

    [8] When considering the above contentions, Flick J at [37] noted the undesirability of a judge imposing himself upon the proceedings, as an advisor or advocate for an unrepresented party, when His Honour said:

    “[37] Although each case must inevitably depend upon its own facts and circumstances, it is to be doubted that a primary Judge is required to explain to an unrepresented party “why the Tribunal’s decision was not made lawfully”. The task imposed upon a Judge at first instance is not to act as an advisor or advocate for the unrepresented party. That contention of the Appellant, expressed in such unqualified terms, is rejected.”

    [9] For a judge to not only elicit information from an applicant orally for the purpose of particularising the applicant’s grounds for review, but to then necessarily have to formulate and record the judge’s assessment of what was said orally by the applicant, goes far beyond providing advice to the applicant as to matters of practice and procedure. It blurs the lines between the judge’s duty to remain impartial, and the judge’s duty to ensure a fair hearing. It is this Court’s view that it is not in the interests of justice for a judge to be so integrally involved in the formulation of one party’s case.”

    [Footnotes omitted]

1. In AID19 v Minister for Immigration & Anor [2020] FCCA 1002 at [24], this Court said as follows:

   “[24] For the reasons set out in DUN16, it is not possible, in the exercise of this Court’s judicial power, for the Court to effectively act as the applicant’s advocate in both formulating, and then recording, and then adjudicating upon, what the Court might consider to be grounds of review open to the applicant, and which might appropriately be the subject of judicial consideration. That is particularly so in circumstances where, having done so, the Court would necessarily be so conflicted that it would be prevented from hearing and determining the applications of the applicant, simply because it would be seeking to determine a case advanced on behalf of the applicant which has been formulated by the Court itself.”

2. In circumstances where an applicant has failed to obey Court orders requiring the filing of written submissions, and further where any such written submissions could have detailed the bases of the allegations set out in the grounds of review, the Court finds that the applicant has trifled with the Court, and otherwise made it impossible for the Court to undertake a proper review. Ground 2 of the Originating Application for Review is without merit.

3. Notwithstanding the above, the Court further finds that on any view, the Tribunal did not err in the way in which it approached its statutory duty. It relevantly set out the criteria for the grant of a protection visa, and it had regard to the considerations set out in Ministerial Direction No. 56 made under s. 499 of the Act.

4. At [18] – [31] of its reasons, the Tribunal identified a number of inconsistencies in the applicant’s claims. At [32] of its reasons, the Tribunal rejected the applicant’s claims, saying as follows:

   “[32]I have considered [AFN17’s] claims in light of her being, separately and cumulatively, an ethnic Chinese Malaysian, a woman and single. Overall, however, I find on the evidence before me that [AFN17’s] claims are not reliable. Having regard to the inconsistent evidence in this case, about instances of harm, about lack of police response, and about [AFN17’s] actions after April 2013, I do not believe that [AFN1] fled Malaysia in fear of a violent boyfriend or ex-boyfriend from whom she was unable .to access protection including state protection. I do not accept that she fled Malaysia due to potentially relevant harm. I find on the evidence of her actions and research that she was motivated to come to Australia to work for money.”

   [name of applicant omitted]

5. At [34] of its reasons, the Tribunal found that it was satisfied that the applicant could reasonably and safely relocate within Malaysia to live at a place other than Penang.

6. After having considered all of the evidence, the Tribunal found that the applicant was not owed protection under s. 36(2)(a) of the Act, or complementary protection under s. 36(2)(aa) of the Act. The Tribunal actively intellectually engaged in a consideration of all of the applicant’s claims, and did not err in its decision making process.

7. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

8. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

9. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

10. Further, and by reason of the foregoing, the application for extension of time is accordingly dismissed.

11. The Court will hear the parties as to costs.      

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       2 November 2021