Alv18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 122
•7 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ALV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 122
File number(s): SYG 258 of 2018 Judgment of: JUDGE STREET Date of judgment: 7 October 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) (Subclass 866) Visa – where the applicant appeared before the Tribunal without an interpreter – where the applicant provided incoherent answers to the Tribunal’s questions – whether the applicant had a real and meaningful hearing before the Tribunal – whether the Tribunal failed to properly exercise its jurisdiction in respect of complementary protection – relief granted – writ of certiorari issued – writ of mandamus issued. Legislation: Migration Act 1958 (Cth) ss 425, 476 Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 7 October 2021 Place: Sydney Counsel for the applicant: Ms U Okereke-Fisher Counsel for the first respondent: Mr D McDonald Norman Solicitors for the first respondent: HWL Ebsworth ORDERS
SYG 258 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALV18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
7 OCTOBER 2021
THE COURT ORDERS THAT:
1.A writ in the nature of certiorari is issued calling up the record of the second respondent and quashing the decision made by it on 23 May 2017.
2.A writ in the nature of mandamus is issued requiring the second respondent to determine the review application before it according to law.
3.Order 4 made on 28 July 2021 is vacated.
4.The first respondent pay the applicant’s costs fixed in the amount of $5,000.00.
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 STREET:
Introduction
This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 May 2017, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Protection (Class XA) (Subclass 866) Visa (“the Visa”).
Background
The applicant is a citizen of Malaysia. On 25 October 2016, the applicant made a valid application for protection. The applicant originally identified a claim, in his Visa application, to fear harm because he had been punished and blackmailed and threatened by gangs.
On 23 December 2016, the delegate found that the applicant failed to meet the criteria for the grant of the Visa.
Before the Tribunal
On 23 December 2016, the applicant applied to the Tribunal for review. The Tribunal invited the applicant to attend a hearing by a letter dated 3 May 2017, which included a response to hearing invitation form, and identifying a proposed hearing date on 22 May 2017. The letter also had a notation in bold:
Interpreter: Please advise us at least 7 days before the hearing if you require an interpreter.
On 5 May 2017, a response to the hearing invitation was provided, and the applicant ticked a box indicating that he did not require an interpreter.
A transcript of the hearing has been tendered before the Court. At the hearing, the applicant raised a new claim, for the first time, that he feared harm in Malaysia by reason of being gay. The Tribunal, from pages 22 through to 26 of the transcript, sought to raise with the applicant a concern as to whether this claim was raised to assist the applicant’s application, as it was only raised for the first time at the hearing. It is apparent that the applicant, in relation to the questions as to raising this for the first time because it would assist his case, provided responses that were not coherent. The response:
I am not in this other case for this one because I put –
was clearly unresponsive.
The applicant was invited to continue, and the response did identify a reference to the applicant’s own privacy, and that:
I’m not ticked this part at all doing for the Protection visa, okay.
The Tribunal then asked why the applicant did not include the claim, and the applicant clearly understood that question and responded:
Yes, because I need to keep it a secret.
The question was then asked why the applicant needed to keep it a secret. The applicant responded:
This is some we know that if somebody is known that you are homosexual is different, they will look at you, and there is a – also is a – they tend to look at somebody is like that.
The applicant’s explanation was not, on its face, meaningful or coherent. The Tribunal member continued in relation to the concern that the applicant’s claim to fear harm by reason of being gay had not been mentioned before. Then, in seeking to paraphrase the gist of the applicant’s response, which was incoherent, the Tribunal member asked:
So the reason you have now not mentioned is because you wanted to keep it a secret because people look at you strangely. Is that correct?
There appears to have been an affirmative response. The applicant did not actually use the words “strangely”. The applicant’s response was capable of being understood to have a broader significance in respect of who might look at the applicant.
The Tribunal then turned to whether there was any other reason that the claim had not been mentioned before, and the applicant responded: “No”. The Tribunal then raised with the applicant that it may be that the Tribunal will think that the applicant has just made up the claim to assist his case, and the applicant responded: “Okay”.
The Tribunal was clearly alive at this point to a potential problem in respect of the applicant’s comprehension of what was being said, and asked:
Do you understand what I said?
The applicant then responded: “No”. This is of considerable concern in the context of whether the applicant had a real and meaningful hearing before the Tribunal, and given the exchanges that had taken place. The Tribunal did not directly revisit the applicant saying that he had not understood.
The Tribunal then turned to whether the applicant might persuade the Tribunal that he is homosexual, as claimed. The applicant responded, again, incoherently:
Because this one I’m don’t any of anything that I can showing. I’m telling you now I just can say that that is. I’m no girlfriend until now at the moment.
The Tribunal member clearly had difficulty with that response, asking:
You’ll know what?
And the applicant responded:
No any of a girlfriend for me at the moment.
The Tribunal further raised with the applicant that he did not have a girlfriend, and the applicant referred to:
This is my secret, so I don’t think in Malaysia I needed to tell somebody else, and this is one is a long time that I didn’t find any girlfriend, as I know I’ve got my – my problem, so, yeah.
The applicant was not asked what he understood to be a problem, or any question as to how long he had been gay or why he believed he was gay.
The Tribunal member then turned to raising with the applicant what he did in Australia, and that he had said he had worked. The applicant responded in the affirmative. The Tribunal then put to the member, effectively, that he did not do anything else, to which the applicant responded, “Yes.” The tribunal then asked the applicant:
It doesn’t appear that you do anything in Australia that suggests that you are a homosexual. Do you want to comment about that?
In this context, it was obviously of importance to understand that, whether the applicant had done something in Australia or in Malaysia, were the ultimate considerations to be taken into account in determining whether he in fact was gay.
The applicant then responded:
What does it mean, the comment?
It is at this point that the Court is satisfied that the applicant was clearly raising a level of difficulty in understanding the hearing, which required the Tribunal to address the meaning of the word “comment” in a way that the applicant could comprehend it, or taking other steps, such as to obtain an interpreter, to ensure that the applicant had a real and meaningful hearing. However the Tribunal, in response, did not answer the question asked by the applicant, but referred to wanting to write something down. The Tribunal then referred to the applicant saying that what he did in Australia was worked.
The next question was to the effect of whether the applicant did anything else, and again, an incoherent response was provided by the applicant:
Yeah, just only.
The Tribunal then turned to whether the applicant might have done anything:
…that might satisfy that you did anything to practise homosexuality in Australia, for instance.
The applicant’s response was as follows:
No, I didn’t do anything out of the way. I worked, and for that means in Australia what I do is this is work. After work, I just go – going back home after that. All the time is not doing anything for me, yeah, even though it’s going out at night with less because I’m in Australia. What I know the friend is just only a working friend of that is no fact for me.
The response was garbled and incoherent. The Tribunal member referred to the applicant having working friends but not having friends outside of work, and then referred to the applicant having been in Australia for two years and doing nothing, to which the applicant responds in the affirmative. The Tribunal member then returned to his previous doubts about:
…your claim to be a homosexual, and I’ve asked you for comment about that, and you’ve told me a few things. Is there anything else you wish to tell me to try and persuade me that you are a homosexual, as you claim?
The problem with this question, which Mr McDonald-Norman, of Counsel, for the first respondent relied upon as re-engaging with the issue where the applicant had said: “What does comment mean?”, is that it uses the same expression again without an explanation having been given as to its meaning or ensuring that the applicant comprehended and understood what was being said. The applicant’s response does convey a level of understanding in referring to:
I know that what you need me to tell about that may homosexual.
Again, not clear English. The member responds:
Well, I don’t like to ask too many questions, because people tend to practise their sexuality in varied ways. Usually, I just ask people to tell me, you know, what they’ve done which might satisfy me they’re homosexual, as they claimed.
The applicant responded with a question:
What have I done?
The Tribunal member then took the applicant to his earlier evidence that he did not have a girlfriend. The Tribunal member then referred to it being a major secret, and said:
You didn’t tell anybody because people look at you strangely.
The applicant agreed. The Tribunal member then put to the applicant:
You don’t do anything in Australia, just that you’re a homosexual, so is there any other evidence about that you want to give me?
The applicant responded:
No, I haven’t that can give me for to showing you what my homosexual for that, because in Malaysia there also is no help and even more is protect for this homosexual. For that beside our case in Malaysia also is always a secret, and then for me there’s already like long time is the like the as a secret is not telling anybody, because I don’t have told you anything. That’s like is not can let me showing what is my personality.
The Tribunal member responded:
So you’re saying there is no protection for homosexuals in Malaysia?
The applicant responded:
There’s no.
The Tribunal member then continued:
…that you want to keep it a secret at commencement of the hearing. Well, I actually asked you once or twice if there’s any other reason than your friend that you feared harm in Malaysia. You said, no, there wasn’t.
The applicant responded with a “no, yeah” response. The Tribunal member then put it to the applicant:
And it is only at the very end of the hearing that you’ve said that you’re now a homosexual?
The applicant replied:
---Yes.
The applicant was then asked if there is any else he wanted to say before the Tribunal finished, and the applicant responded: “No.”
Before the Court
Ms Okereke-Fisher, of Counsel for the applicant, identified the above and other parts of the transcript in relation to the issue of whether the applicant had a real and meaningful hearing before the Tribunal. Ms Okereke-Fisher also took the Court to various parts of the Tribunal’s reasons. In particular, Ms Okereke-Fisher referred to the Tribunal’s reasoning in paragraphs 15 and 16, where the Tribunal made an adverse finding as to whether the applicant was a homosexual, as he had claimed. That reasoning picked up the language that the Tribunal had adopted from the applicant’s reference to people looking at him to:
…look at him strangely –
from the Tribunal’s comprehension of the applicant’s evidence. The Tribunal made a finding that the applicant did not claim to have had any homosexual relations in Australia.
There was no clear question put to the applicant as to gay relationships in Australia or indeed, gay relationships in Malaysia. The exchanges with the applicant were ones that Mr McDonald-Norman acknowledged, in the context of the transcript, were troubling. However, Mr McDonald-Norman submitted that the re-engagement with the issue of comment, as it appears in the middle of page 25 of the transcript and then taken in context overall, that the applicant did have a real and meaningful hearing before the Tribunal. The difficulty with that submission is that it was not just the word “comment” not being comprehended by the applicant in that ultimate question for which the Tribunal had not provided a clear response. The Tribunal had already had the applicant identify that he did not understand what was said by the Tribunal member.
Given those responses in that context, the Court accepts the applicant’s submission advanced in relation to Ground 1 that there was not a real and meaningful hearing as required under s 425 of the Act. Accordingly, the applicant is entitled to succeed on the basis of Ground 1.
In relation to Ground 2, the Court also finds that the Tribunal’s reasoning in respect of complementary protection appears to proceed on the basis that the applicant did not meet that statutory criteria, because the applicant could reasonably relocate. The problem in that regard, correctly pointed out by Ms Okereke-Fisher, was that the Tribunal did not identify first the risk or danger in the applicant’s home region by reason of which relocation had to be considered, nor did the Tribunal identify where it was that the applicant could relocate to safely.
The Court accepts Ms Okereke-Fisher’s submission that, on a fair reading, the Tribunal determined the issue of whether the applicant met the complementary criteria by taking into account the applicant’s ability to relocate. However, the Tribunal had not correctly identified the risk in the applicant’s home region, or the area to which the applicant could safely relocate. Those are issues which the first respondent suggested were not material in the context of the case.
The Court is not satisfied that correctly applying the statutory criteria could not possibly have given rise to a different outcome. Accordingly, the Court finds that, in relation to Ground 2, the Tribunal has constructively failed to exercise its jurisdiction in respect of complementary protection, in circumstances where it did not identify the risk of harm in the home region and/or the area to which the applicant could safely relocate.
Accordingly, the Court orders that a writ in the nature of certiorari is issued, calling up the record of the second respondent, and quashing the decision made by it on 23 May 2017. The Court also orders that a writ in the nature of mandamus is issued, requiring the second respondent to determine the review application before it according to law.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 7 October 2021 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 15 February 2022
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