Ahq18 v Minister for Home Affairs
[2022] FedCFamC2G 397
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AHQ18 v Minister for Home Affairs [2022] FedCFamC2G 397
File number(s): MLG 155 of 2018 Judgment of: JUDGE EGAN Date of judgment: 24 May 2022 Catchwords: MIGRATION – application for protection visa – admission by applicant during Tribunal hearing that his claims to fear harm should he be returned to Malaysia were inaccurate, and that his real reason for coming to Australia was to further his economic circumstances – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss. 5H(1), 5J(1), 36(2)(a) and 65. Cases cited: AID19 v Minister for Immigration & Anor [2020]
CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 179
DUN16 v Minister for Immigration & Anor [2019]
MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 Sali v SPC Ltd (1993) 116 ALR
SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 12 May 2022 Date of hearing: 12 May 2022 Place: Brisbane Applicant: Self-Represented Litigant Solicitor for the First Respondent: Sparke Helmore Second Respondent Submitting appearance, save as to costs ORDERS
AHQ 18 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHQ18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
24 MAY 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Migrant Services and Multicultural Affairs.’
2.The time for the bringing of the application for review be extended to 2 January 2018.
3.The Originating Application for Review filed on 2 January 2018 be dismissed.
4.The Applicant pay the First Respondent’s costs of and incidental to the application for review, fixed in the amount $6,200.00.
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
Introduction
The applicant is a citizen of Malaysia who applied for a Protection Visa on or about 5 December 2016 pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (the Act). He arrived in Australia on 26 September 2016 as the holder of an Electronic Travel Authority Visa.
On 6 March 2017, a delegate of the Minister refused to grant the visa application on the ground that the delegate was not satisfied that the applicant was a refugee as defined under s. 5H(1) of the Act. The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the delegate’s decision.
The applicant appeared before the Tribunal on 28 September 2017 accompanied by a support person and an interpreter fluent in the Malay and English languages.
On 28 November 2017, the Tribunal affirmed the decision of the delegate.
At [3] – [6] of its reasons, the Tribunal set out the criteria for the applicant to be considered a refugee under s. 5H(1) and 36(2)(a) of the Act. The Tribunal further recorded what constituted a well-founded fear of persecution under s. 5J(1) of the Act.
At [7] of its reasons, the Tribunal recorded the relevant criteria required to be satisfied for Australia to have complimentary protection obligations under s. 36(2)(aa) of the Act.
At [18] and [19] of its reasons, the Tribunal recorded the applicant’s claims for protection as follows:
“[18] The applicant claims that he had to leave Malaysia as he was involved with the Bersih 4.0 rally on 29 August 2015 at Kuala Lumpur.
[19] The applicant claims that the Malaysian Government had banned the rally, that it was illegal and that all participants will be arrested.”
Grounds of Review
On 2 January 2018, the applicant filed an Originating Application for Review. The extension of time application made by the applicant for the filing of the application was not opposed by the lawyers for the first respondent. Such application is accordingly granted.
The grounds of review were as follows:
"1. The judge did not consider all of the evidence of what I said in the hearing. This will be shown in the transcript of the hearing - I explained what will happen to me if I have to go back to Malaysia.
2. The judge accepted I was telling the truth and that I am a good person. I even have a girlfriend who is a permanent resident of this country. My girlfriend believes in me and my story and she is a witness in this appeal. The member did not consider the proverb ·'the truth shall set you free" because my story is a good one but it is not shown in the hearing decision.”
Each ground of review is so lacking in particularity as to be incapable of judicial determination, thereby warranting the dismissal of each such ground.
In WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35], Gilmour J said as follows:
“[35] Ground two is, I agree, an unparticularised 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 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.”
In CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 179 at [23] – [26] Farrell J said as follows:
“[23] The Court explained to the appellant that the Court cannot meaningfully engage with an appeal ground that makes a general complaint of error by the FCCA, without providing particulars of the ways in which he says that the FCCA Judge erred. The appellant did not provide any further particulars.
[24] The Minister filed written submissions. The Minister’s representative submitted that, where (as here) the appellant had been given the opportunity to provide particulars and make oral submissions, the Minister has no case to answer.
[25] In EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12], I said:
While the difficulty faced by a self-represented litigant cannot be minimised, this Court cannot meaningfully engage with the appellant’s ground of appeal where the ground makes a general and unparticularised complaint of error by the primary judge. As pointed out by Bromwich J in FLW17 v Minister for Immigration and Border Protection [2019] FCA 352 at [17], it is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. It is also not for the Court to perform the function of identification of error where the appellant has not. Where no identifiable error on the part of the primary judge has been alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs. See also SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [17], [24]-[26], [29]-[30] and [32] per Flick J.
[26] Those remarks are equally applicable in this case. In this case, the appellant has not identified appellable error by the FCCA Judge nor is any apparent from the reasons that her Honour gave for dismissing the application for judicial review of the Tribunal’s decision.”
In SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1389, when considering an un-particularised ground of appeal, Farrell J at [22] of her reasons 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).”
This Court is unable to review matters where the grounds of review are un-particularised and where no written submissions were filed or presented to the Court in support of the grounds of review.
At [4] – [9] in DUN16 v Minister for Immigration & Anor [2019] FCCA 2951, this Court, when faced with similarly un-particularised grounds of review, held 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. [1] 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] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (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] FCA 85; (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.”
In AID19 v Minister for Immigration & Anor [2020] FCCA 1002 at [24], this Court also held 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.”
In the present matter, the Court is unable to effectively hear and determine the grounds of review. There are sounds public policy grounds for dismissing the application for review based on the lack of particularity of the grounds of review. Any adjournment of the hearing to allow the applicant to rectify the lack of particularity would only serve to unnecessarily increase costs, and also delay the hearing of other matters in what is a very busy Court list. That latter issue was considered in the joint judgment of Brennan, Deane, and McHugh JJ in Sali v SPC Ltd (1993) 116 ALR at .7 - .20 where it was said as follows:
“In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by the litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v Rogers this “may require the knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing”. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of the court resources. “
The question as to whether or not a matter ought to be adjourned was also considered by Logan J in MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392, where at [11] – [13] of His Honour’s reasons it was said as follows:
“[11] Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of a proceeding. By that I mean, were the case to be adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day. That such a consideration is relevant was highlighted in Luck in the reference to Sali v SPC Limited [1993] HCA 47; (1993) 116 ALR 625 at 629, where Brennan, Deane and McHugh JJ observed that a court is entitled to be conscious of:
... the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court, as well as the interests of the parties.
[12] Luck also offers a reminder in the reference at [44], [45] and [46] to Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 that, quite apart from having to the consumption of public resources, a costs order is not necessarily palliative.
[13] The result then is one where there is not, in my view, any sufficient foundation for a conclusion that the appellant is unable because of some particularised medical condition to attend at Court today to prosecute his appeal. It is just a case where he is not present to prosecute that appeal. That being so, there is a want in the prosecution of the appeal. That is, an event which entitles the Minister to apply for its dismissal. I dismiss the appeal accordingly, with costs.”
The applicant did not ask for the hearing to be adjourned so that he might amend the grounds of review. The Court is not satisfied that this was an appropriate matter where the Court, of its own volition, should adjourn the hearing of the matter so as to allow the applicant to amend and properly particularise the grounds of review, particularly in the light of the applicant’s admissions at the time of the Tribunal hearing which will be later referred to. Accordingly, as the Originating Application for Review, on its face, is un-particularised and otherwise without merit, it is dismissed.
Further, and materially, the Tribunal appropriately identified in its reasons that the applicant had admitted that he came to Australia for economic reasons, and has remained in Australia for those reasons, rather than his having a well-founded fear of persecution should he be returned to Malaysia. The Tribunal dealt with those issues at [38] – [48] of its reasons as follows:
“[38]The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant ·claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'.· It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
[39]The Tribunal was impressed by the applicant. He was a likeable young man. He answered questions honestly and was upfront about admitting to the Tribunal that his claims were not accurate. He gave a very honest account of the reasons why he came to Australia.
[40]The Tribunal accepts that the claims included in the application form are not accurate.
[41]The Tribunal accepts that the applicant came to Australia for economic reasons and the very noble reason of wanting to support his parents financially.
[42]The Tribunal accepts that the applicant has no fear of persecution. It accepts that he has not suffered any form of harm in the past and does not fear suffering any form of harm in the future.
[43]The Tribunal is not satisfied that there is a real chance that the applicant will be at risk or serious harm for reason of race, religion, nationality, membership of a particular social group or political opinion if he returns to Malaysia now or in the reasonably foreseeable future.
[44]Having considered all of the applicant's claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does no~ have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Malaysia. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
[45]The Tribunal has considered the applicant's claims under complementary protection.
[46]In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Malaysia now or in the reasonably foreseeable future.
[47]Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and country information, as well as having considered the personal circumstances of the applicant as contained in his application, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Malaysia now or in the reasonably foreseeable future.
[48]Accordingly, and applying the authority in MIAC v SZQRB (2013) 210 FCR505, 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 Malaysia, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.”
Unsurprisingly, the Tribunal found that the applicant was not owed any primary or complimentary protection obligations.
The applicant has failed to demonstrate any jurisdictional error on the part of the Tribunal.
The application for review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 24 May 2022
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