Ahn18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 370
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AHN18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 370
File number(s): MLG 149 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 24 April 2024 Catchwords: MIGRATION - protection visa – application for review of decision of the Administrative Appeals Tribunal – where applicant: sought to rely on new evidence and a new claim raised after the Tribunal hearing which was responsive to the Tribunal decision; made claims of inaccurate translation after the fact because the Tribunal had not referenced every piece of evidence in its decision; and otherwise asked the Court to engage in impermissible merits review – no error of jurisdiction articulated, established or identified – application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss.36, 474, 476.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration v Yusuf [2001] HCA 30
Plaintiff SI57/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 18 April 2024 The Applicant: Appearing in person Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 149 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHN18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The application filed on 19 January 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $6,000.
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 Mansini
IN SUMMARY
The Applicant is a citizen of Malaysia who sought a protection visa on the basis of claims to fear harm on return due to his former involvement in a criminal gang and lack of police protection in his home country.
The Applicant now seeks judicial review of a tribunal decision to affirm an administrative decision to refuse him a protection visa.
For the reasons that follow, the application must be dismissed with costs.
CONTEXT
On 1 September 2015, the Applicant arrived in Australia as the holder of a visitor (subclass 601) visa before departing on 15 November 2015 and returning again on 10 January 2016 as the holder of a further visitor (subclass 601) visa.
On 17 March 2016, the Applicant applied for a protection (subclass 866) visa which was refused by a delegate of the First Respondent on 29 April 2016.
On 2 May 2016, the Applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision. On 14 December 2017, the Applicant attended a hearing before the Tribunal, with the assistance of an interpreter, conducted by video link.
On 22 December 2017, the Administrative Appeals Tribunal decided to affirm the delegate’s refusal decision. The reasons for the Tribunal’s decision were recorded, in writing, in a statement of decision of same date (Tribunal’s Reasons). By those reasons the Tribunal found, in summary, that the Applicant was not a credible witness and did not accept his claims that he was a member of a criminal gang, that he smuggled drugs or guns, that he had ever been threatened with harm or sought out by the Malaysian authorities or members of a gang, or that he would be sought out or harmed by the authorities or a gang if he were to return to Malaysia: at [32] to [34] of the Tribunal’s Reasons. Accordingly, that the Applicant was not entitled to protection as a refugee or owed complementary protection pursuant to ss.36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act).
On 29 December 2017, the Applicant sent two emails to the Administrative Appeals Tribunal with reference to the Tribunal’s Reasons. By those emails, the Applicant articulated his desire to appeal and explained that he could not show solid proof of his claims to fear harm because his cell phone was lost and then articulated claims as to the circumstances of his phone loss and other claims. On 2 January 2018, the Tribunal wrote to Applicant by which it said that it had no power to take any further action on the review and had decided not to reopen the case. On 19 January 2018, the Applicant sent an email to the First Respondent’s Department which set out a number of claims and requested an extension of his visa.
APPLICATION BEFORE THE COURT
On 19 January 2018, this application for judicial review was filed with a short accompanying affidavit. By the initiating application, the Applicant articulated 3 grounds of review in the following terms:
1.Firstly, I escaped from the triad group because I dont want to become a victim of this gang anymore. I repent to change and start a new life with my wife with a clean lifestyle. They still looking for me because they thought im still keep all the private and confidential of the group which is all inside the phone that already lost. I Really hope they could find me at Malaysia especially to persuade me to join the group again.
2.I unsatisfied with the previous result of the hearing department because I just need the protection and live legally in your Country and working legally to earn the halal income here. I cant earn any income in Malaysia because of this triad group. They will non-stop finding and persuade me.
3.I refuse to make a police report in Malaysia because if they do the investigation, im sure the case will never close since there a lot of corruption and make the case delayed. So I decided to come Australia and hope that the responsible party will give me opportunity to me to prove that my case is true.
(Sic.)
On 29 January 2018, a response was filed on behalf of the First Respondent contending that the decision of the Tribunal was not affected by jurisdictional error.
Various procedural orders followed. Most recently, on 7 December 2023, programming orders were made by which the Applicant was invited to file any amended application, an outline of written submissions and any additional evidence and the First Respondent was invited to respond. The hearing date was subsequently amended on account of interpreter (un)availability.
It was uncontroversial that the Applicant had received the Court orders of 7 December 2023 and the relisted hearing notification but did not file any amended application, written submissions or additional evidence - whether in accordance with those orders or at all. Nor was there any record of correspondence with the Court to request an adjournment or additional time to prepare materials in advance of the hearing.
On 18 April 2024, the matter proceeded to hearing before the Court as presently constituted. The Applicant attended with the assistance of an interpreter and the First Respondent was represented by a solicitor advocate. At the outset of the hearing, the process and role of the Court was explained to the Applicant. The Applicant confirmed that he had received and read the First Respondent’s written submissions and had a good understanding of English and would only need the assistance of the Court-provided interpreter if requested. The Applicant sought to tender additional documents that had not been filed or served, which he said was new evidence that was relevant to the reasons why he fears harm on return to Malaysia and should be granted a protection visa. As was explained to the Applicant, those documents were not received because the Court is not able to engage in a review of the merits of the Tribunal’s decision. With the assistance of the interpreter, the Applicant made oral submissions at the hearing.
CONSIDERATION
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s.476 of the Act, Plaintiff SI57/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [8].
Ground 1
By the first ground of his application to this Court, the Applicant was understood to contend that he is owed protection because of his fear that, on return, he would be subject of harm by a gang in Malaysia of which he was formerly a member and that he had evidence in support but could not produce it on account of a phone which had been lost.
The Applicant’s emails of 29 December 2017 raised the claim to have been unable to produce supporting evidence because of a lost cell phone.
To the extent that those emails contained evidence put to the Tribunal at the hearing, the Applicant explained that it was not until after the hearing, when he received the Tribunal’s Reasons, that he realised that the interpreter who had assisted him at the hearing before the Tribunal had not accurately translated his evidence given at hearing. More specifically, that he knew the interpreter was inaccurate because there was no reference in the Tribunal’s Reasons to his lost phone which he said contained the necessary information or evidence to establish this claim and was a matter about which he had given evidence at the Tribunal hearing. I accept that, on a most beneficial read, such claim is within scope of the first ground.
On what is before the Court, I am not able to conclude that the Tribunal-provided interpreter was inaccurate in their interpretation of the Applicant’s submissions and evidence at the Tribunal hearing. There was no transcript of the Tribunal hearing before the Court or evidence which articulated the claimed inaccuracies in translation by the interpreter at the hearing. The Applicant accepted that he did not raise any issues with the translation during the Tribunal hearing.
Rather, the essence of the Applicant’s complaint in this ground 1 is that he assumed the interpreter had not translated accurately because the Tribunal did not mention his claim about the lost phone and associated lost evidence in the Tribunal’s Reasons. That conclusion does not logically or reasonably follow in circumstances where the Tribunal was not required to refer to every single piece of evidence put to it by the Applicant or to give a “line by line refutation” of his claims: Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at [65].
Here, the Tribunal did engage with the Applicant’s primary claim to fear harm from the gang because the gang thought he had information about them, but dismissed it due to seriously adverse findings as to the Applicant’s credibility as a whole.
On what is before the Court, it may be inferred that the Applicant’s lost phone claim and associated lost evidence claim was not referenced in the Tribunal’s Reasons because the Tribunal did not consider those matters material to its decision: Minister for Immigration v Yusuf [2001] HCA 30 at [68].
The first ground is not established.
Ground 2
By the second ground of his application to this Court, the Applicant claimed to be unable to earn an income in Malaysia because the gang would pursue him and otherwise disagreed with the Tribunal’s Reasons.
The Applicant’s emails of 29 December 2017 and 19 January 2018 raised the Applicant’s claims in respect of income on return to Malaysia. On the materials before the Court, this claim was not raised prior to the Administrative Appeals Tribunal. The Tribunal’s Reasons include a summary of the claims made at the hearing which does not reflect that this claim was made in evidence at the hearing.
To the extent that this claim was not put to the Tribunal during or before the hearing and was only raised in email communication with the Tribunal and the Department after the Tribunal had made its decision and published the Tribunal’s Reasons on 22 December 2017, then the Tribunal was neither required nor empowered to consider the claim.
The Applicant did not allege any incorrect translation in respect of the particular claim subject of this second ground. To the extent that he sought to do so, without more (such as a transcript of the hearing or particular allegation), there is no basis to find that the translation at the Administrative Appeals Tribunal hearing was inaccurate.
This second ground is not established.
Ground 3
The third ground is expressed in terms of the Applicant’s response (or further response) as to the decision of the delegate, where it was found that there are effective protection measures available to the Applicant in Malaysia. Specifically, this ground articulates the Applicant’s reasons for not having made a police report.
This ground does not relate to the Tribunal’s Reasons and accordingly does not establish that the decision of the Administrative Appeals Tribunal was affected by any error of jurisdiction.
This third ground does not succeed.
DISPOSITION
For the above reasons, the application in this matter must be dismissed. It is an appropriate case in which to order costs in the scale amount provided in Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 24 April 2024
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