Alg18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 81
•8 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ALG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 81
File number: MLG 233 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 8 February 2024 Catchwords: MIGRATION LAW – Application for judicial review of the decision of the Administrative Appeals Tribunal – affirmed decision to not grant a protection visa – whether Tribunal decision was affected by jurisdictional error – ground of review unparticularised – no jurisdictional error identified – application dismissed with costs Legislation: Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, div 1, item 3
Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZNXZ v Minister for Immigration and Citizenship [2010] FCA 775
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of last submissions: 31 January 2024 Date of hearing: 31 January 2024 Place: Melbourne The Applicant: Appeared in person Solicitor for the First Applicant: Sparke Helmore Lawyers Solicitor for the Second Applicant: Submitted an appearance, save as for costs ORDERS
MLG 1342 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALG18
Applicant
AND: MINISTER FOR IMMIRGATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
8 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application filed 31 January 2018 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed 31 January 2018 (Application), the Applicant seeks judicial review of a decision of the Second Respondent (Tribunal) dated 16 January 2018 (Tribunal’s Decision). The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (subclass 866) visa (Visa).
The Application is brought in this Court pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) and contains within it a singular ground of review, which will be considered below.
This matter was heard on 31 January 2024 and proceeded in person at the Court’s Melbourne Registry (Hearing). At the conclusion of the Hearing, judgment was reserved. These are the Reasons for Judgment in relation to the Hearing.
ISSUES IN DISPUTE
The issue in dispute is whether the Tribunal’s Decision contains jurisdictional error.
SYNOPSIS
I have determined that no jurisdictional error within the Tribunal’s Decision has been identified and therefore the Application must be dismissed.
BACKGROUND
The Court has before it a Court Book filed by the Minister on 28 November 2023 numbering 90 paginated pages (Court Book). The Court has reviewed the material in the Court Book in detail, including the material before the Delegate and the Tribunal and the respective decisions of each.
The Applicant was born in 1992 in Malaysia and arrived in Australia in December 2015.[1]
[1] Court Book (CB) 14 and 21.
On 29 March 2016, the Applicant applied for the Visa (Visa Application) and was granted an associated bridging visa. In the Visa Application, the Applicant stated that he left Malaysia due to his homosexuality and experience with his partner.[2]
[2] CB 32.
On 29 July 2016, the Department of Immigration and Border Protection (Department) notified the Applicant by email that his Visa Application was refused (Delegate’s Decision).[3] The Delegate did not consider the Applicant to be a person in respect of whom Australia owes protection obligations pursuant to ss 36(2)(a) or 36(2)(aa) of the Migration Act.[4]
[3] CB 39-53.
[4] CB 43, 52-53, [24]-[34].
On 10 August 2016, the Applicant applied to the Tribunal for review of the Delegate’s Decision.[5] On 20 July 2017 the Applicant was invited to attend a hearing before the Tribunal,[6] which he did so on 7 August 2017 as a self-represented applicant, with the assistance of a Malay interpreter (Tribunal Hearing).[7]
[5] CB 54-55.
[6] CB 59-61.
[7] CB 62-63.
On 16 January 2018, the Applicant was notified of the Tribunal’s Decision by email.[8]
[8] CB 66-74.
THE TRIBUNAL’S DECISION
The Tribunal’s Decision appears at Court Book pages 68 to 74.
The Tribunal set out the relevant statutory criteria for a grant of the Visa under the Migration Act and noted that it must consider policy guidelines prepared by the Department and relevant country information.[9] The Tribunal also summarised the Applicant’s claims for protection as they appeared in the Department’s file.[10]
[9] CB 69-70, [3]-[8].
[10] CB 70-71, [14].
The Tribunal went on to note that the Applicant had provided evidence at the Tribunal Hearing which it considered ‘of deep concern’, including information relating to his intentions in coming to Australia to study, his wishes to convert his Visa Application to an application for a student visa, and his lack of engagement with the LGBTIQ community since arriving in Australia.[11]
[11] CB 71-72, [15]-[24].
As a result of the aforementioned concerns of the Tribunal, it found the Applicant’s evidence unconvincing, and his protection claims implausible.[12] The Tribunal ultimately did not accept that the Applicant was homosexual or same-sex attracted nor that he genuinely fears return to Malaysia for the reasons claimed, but rather that he had manufactured the totality of his claims for protection.[13]
[12] CB 72, [23]-[25].
[13] CB 72-73, [26]-[27].
The Tribunal was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act.[14] Therefore, the Tribunal affirmed the Delegate’s Decision not to grant the Visa.[15]
[14] CB 74, [33]-[35].
[15] CB 74, [36].
PROCEEDINGS BEFORE THE COURT
On 31 January 2018, the Applicant filed the Application with the Federal Circuit Court of Australia (the predecessor of this Court), together with an Affidavit, affirmed the same day (Applicant’s Affidavit). The Applicant was unrepresented at the time of filing the Application and remained so at the Hearing.
On 14 November 2018 and 1 December 2023, Orders were made by Registrars of the Court for the Applicant to file and serve an amended application providing proper particulars of the grounds of the Application. As no amended application has been filed by the Applicant,[16] the Court refers to the ground of review as it appears in the Application (Ground of Review), as follows:
1. The Tribunal did not make it’s decision on 16 January 2018 according in law, in that
1.1The Tribunal was made decision without looking at the evidence of the Applicant.
(Without alteration)
[16] The Applicant was provided two (2) opportunities to file an amended application on 14 November 2023 and 1 December 2023 by Orders of Registrars Allaway and Downing respectively.
The Applicant’s Affidavit did not expand upon the Ground of Review but rather reiterated that there are grounds of review by the Court.[17]
[17] Affidavit of the Applicant affirmed and filed 31 January 2018, [2]. The Court takes the Applicant’s comments that he considers ‘day are grand for an applicant for review in this court’ to mean that he considers there are grounds of review.
The only documents filed with the Court by the Applicant in this matter are: the Application; the Applicant’s Affidavit; and a Notice of Address for Service, filed 14 November 2018, confirming that the Applicant continued to be self-represented.
The Applicant appeared in person at the Hearing, with the assistance of a Malay interpreter. Upon invitation from the Court for submissions relating to his Application, the Applicant made the following comments:
(a)‘When I make this application, at that time, I was still young. Probably I made some mistakes during the interview’;[18]
(b)‘If I’m forced to return to Malaysia then I will be told I will be forced to get married with someone…’;[19] and
(c)‘In 2022, my mother came to visit me and she forced me to get married. She forced me to get married and she was finding some ladies for me and one of them is my cousin. I don’t want to get married. I’m happy with my age and my situation now’.[20]
[18] Transcript P3:L21-22.
[19] Transcript P5:L4-5.
[20] Transcript P5:L14-17.
The documents relied upon by the Minister in this matter include: the Response, filed 15 February 2018; Written Submissions, filed 18 January 2024 (Minister’s Submissions); and an Affidavit of Service of Jack Mangos, Lawyer, filed 25 January 2024.
The Court has also considered the Court Book and the transcript of the Hearing.
The Court will now consider the Applicant’s Ground of Review.
CONSIDERATION
The Ground of Review in the Application appears to assert that the Tribunal failed to consider relevant information in making its decision on review.
The Minister submits that the Ground of Review is insufficiently particularised to be meaningful and that on this basis alone, the Application should be dismissed: SZNXZ v Minister for Immigration and Citizenship [2010] FCA 775 at [21].[21] I agree that the Ground of Review is completely without detail and does not provide any indication to the Court as to what information the Applicant asserts was not considered by the Tribunal.
[21] Written Submissions of the Minister filed 18 January 2024 (Minister’s Submissions), [19].
The Minister further submitted that the Ground of Review, at its highest, amounted to impermissible merits review of the Tribunal’s Decision by virtue of its apparent challenge to findings of the Tribunal that were open to it on the material before it.[22]
[22] Minister’s Submissions, [21].
The Tribunal plainly considered all material before it, including the information obtained from the Applicant’s file with the Department, as well as his evidence at the Tribunal Hearing. The Tribunal concluded from this evidence that the Applicant’s protection claims were not genuine and did not consider the Applicant to be homosexual as he had previously claimed. Such findings were open to the Tribunal to make upon the evidence, particularly in light of the evidence given by the Applicant himself to the Tribunal. It is not for the Court to comment on or review the weight attributed by the Tribunal to the Applicant’s evidence, nor the findings arrived at upon such evidence: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.
No jurisdictional error is established in the Ground of Review. The Ground of Review must be dismissed.
CONCLUSION
The Applicant has not identified any jurisdictional error in the Tribunal’s Decision and no error of law is apparent on the evidence before the Court.
The Application must be dismissed.
At the Hearing, the Minister sought costs fixed in the sum of $5,000.[23] The Court notes that this amount is below the scale amount in item 3, Division 1, Part 2, Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and as such is appropriate in the circumstances. Orders will be made that the Applicant pay the Minister’s costs in the amount of $5,000.
[23] Transcript P4:L42.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Her Honour Judge C.E. Kirton KC. Associate:
Dated: 8 February 2024
0
3
2