AMA18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 507
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 507
File number(s): MLG 261 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 16 June 2023 Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – whether there was erroneous interpretation or translation by the provided interpreter at Tribunal hearing – whether applicant was denied the opportunity to table new and relevant information – whether applicant would be denied effective protection measures – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss.5J, 5LA, 36(2), 474, 476 Cases cited: Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
Craig v South Australia (1995) 184 CLR 163
Gupta v Minister for Immigration [2016] FCA 1004
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18
Minister for Immigration v Eshetu [1999] HCA 21
MZXHY v Minister for Immigration[2007] FCA 622
Perara v Minister for Immigration [1997] FCA 507
Plaintiff S157/2002v Commonwealth [2003] HCA 2
SZJMG v Minister for Immigration & Citizenship[2008] FCA 1145.
WZATI v Minister for Immigration & Border Protection[2015] FCA 923
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 20 March 2023 Date of hearing: 23 May 2023 Place: Melbourne Counsel for the Applicant: Appeared in person Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 261 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMA18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
16 June 2023
THE COURT ORDERS THAT:
1.The application filed on 2 February 2018 be dismissed.
2.The Applicant pay the costs of the First Respondent 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
Judge Mansini
INTODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal (Tribunal) pursuant to s.476 of the Migration Act 1958 (Cth) (Act). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
For the reasons that follow, the application is dismissed with costs.
CONTEXT
The Applicant is a male citizen of Malaysia.
On 7 September 2016, the Applicant arrived in Australia on a UD-601 Electronic Travel Authority visa.
On 6 December 2016, the Applicant applied for a protection visa and was granted an associated bridging visa. The Applicant claimed to fear harm from a loan shark to whom he owed money in the amount of RM 50,000.
On 8 March 2017, a delegate of the First Respondent refused to grant the Applicant’s protection visa application. The delegate found that the Applicant did not claim to fear harm for a reason in s.5J(1) and, after considering country information, found that the Applicant would be able to access effective state protection.
On 11 March 2017, the Applicant applied to the Tribunal for review of the delegate’s decision.
On 10 May 2017, the Tribunal invited the Applicant to attend a hearing on 8 June 2017.
On 19 May 2017, the Tribunal agreed to the Applicant’s request made on 12 May 2017 to change the hearing location so that the Applicant could attend by video link to Melbourne.
On 8 June 2017, the Applicant attended the scheduled hearing to give evidence and present arguments with the assistance of a Malay interpreter. The hearing was adjourned to a later date.
On 13 June 2017, the Tribunal invited the Applicant by email to attend a resumed hearing on 22 June 2017. That date was subsequently postponed and twice rescheduled.
On 30 October 2017, the Applicant attended the resumed hearing before the Tribunal, with the assistance of a different Malay interpreter.
On 15 January 2018, the Tribunal delivered written reasons for its decision to affirm the delegate’s decision (Reasons).
The Tribunal’s Reasons
In its Reasons, the Tribunal acknowledged and summarised the Applicant’s claims and evidence, specifically that he feared harm because he was in debt to a loan shark: Reasons at [16]-[22]. In summary, the Applicant’s claims were that:
·He had to leave Malaysia because he has a loan with an unlicensed money lender known as ‘Ah Fey’ and that he cannot afford to pay the debt despite working two jobs because the interest on the repayment is too high;
·He borrowed the money to help support his family due to the fact that his mother was no longer working and his sister was studying;
·He had received threats from debt collectors and is afraid the loan shark will harm him and his family;
·The police are corrupt and will do nothing to prevent the loan shark from harming him or his family; and
·He travelled to Indonesia to find a job to avoid the loan shark but the unemployment rate was too high for him to find work and subsequently travelled to Australia.
The Tribunal summarised the country information which was put to the Applicant during the hearing: Reasons at [23]-[36].
In relation to law enforcement and the legal system in Malaysia, the Tribunal referred to the Department of Foreign Affairs and Trade Country Information Report, Malaysia 19 July 2016 (DFAT Report) which noted that the Royal Malaysian Police is considered by local and international sources to be a professional and effective police force: Reasons at [37]. The Tribunal also referred to a report by Human Rights Watch in 2014 which reported that certain key recommendations of the Royal Commission including improving police investigative capabilities and creating effective external accountability mechanisms have not been implemented: Reasons at [40]. The Tribunal concluded the country information indicates that Malaysian authorities including the police and judiciary are reasonably effective in combating criminal gangs: Reasons at [41].
The Tribunal acknowledged the Applicant had a subjective fear that he would again be threatened and abused by representatives of the loan shark if he returned to Malaysia: Reasons at [47].
The Tribunal made findings that the Applicant belonged to membership of a particular social group, namely a person who borrowed money from a loan shark. The Tribunal accepted that the Applicant had a genuine and credible fear of harm pursuant to s.5J(1)(a) of the Act, if he returned to Malaysia: Reasons at [48].
In considering whether effective protection was available to the Applicant in Malaysia against persecution and threats of harm by the money lender or his associates, the Tribunal:
(a)Did not accept the Applicant’s evidence that he made an official report to the police in relation to the loan sharks’ threats and harassment which was not acted on due to the fact they were corrupt. The Tribunal did not accept the Applicant’s evidence as he was not able to tell the Tribunal when and where he made the report, and was not able to provide any evidence that a report had in fact been made: Reasons at [50]; and
(b)Did not accept that the Applicant will be denied effective protection measures. While the Tribunal accepted that loan sharks are widespread in Malaysia based on the available country information, it did not accept the activities of loan sharks are so extensive that the Applicant will be denied effective protection measures: Reasons at [52].
The Tribunal found that by the operation of ss.5J(2) and 5LA, the Applicant did not have a well-founded fear of persecution and found he did not satisfy s.36(2)(a) regarding the Applicant’s loan shark claims: Reasons at [53]-[54].
In relation to its complementary protection assessment for purposes of s.36(2)(aa) of the Act, the Tribunal found that as a result of being a loan shark victim, the Applicant had a risk of harm that included severe physical violence and ill-treatment and that this harm amounted to significant harm as outlined in ss.36(2A)(c) and (d): Reasons at [55].
However, based on country information the Tribunal was satisfied that the Applicant could obtain protection such that there would not be a real risk that he would suffer significant harm. Accordingly, the Tribunal found pursuant to s.36(2B)(b), there is taken not to be a real risk that the Applicant would suffer significant harm in Malaysia and he did not satisfy s.36(2)(aa): Reasons at [57].
Having considered the Applicant’s claims and accepted circumstances, both individually and cumulatively, the Tribunal was not satisfied that there were 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 he will suffer significant harm under s.36(2)(aa): Reasons at [60]. The Tribunal concluded that it was not satisfied that the Applicant was a person in respect of whom Australia owed protection obligations under ss.36(2)(a) and 36(2)(aa) of the Act and was not satisfied that the Applicant would face a real chance of serious harm or real risk of significant harm in the event he were to return to Malaysia: Reasons at [61]-63].
Proceedings before this Court
On 2 February 2018, the Applicant filed an application for judicial review, and an affidavit sworn that same day. By that affidavit, the Applicant confirmed that he was self-represented and attached the Reasons of the Tribunal affirming the delegate’s decision. By that application, the Applicant sought relief that the decision of the Tribunal be quashed; a writ of mandamus requiring the Tribunal to determine the application according to law and an injunction restraining the Minister, by himself or by the Department, from making the future decision or taking other action the subject of the proceedings.
On 12 February 2018, the First Respondent filed a notice of address for service.
On 15 February 2018, the First Respondent filed a response.
On 14 November 2018, procedural consent orders were made by a Registrar of this Court for the filing of material in advance of the hearing with a future hearing date to be advised.
On 27 November 2018, the First Respondent filed a court book.
On 25 May 2022, procedural orders were made by a Registrar of this Court changing the name of the First Respondent to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
On 7 July 2022, the First Respondent filed a notice of address for service.
On 23 February 2023, procedural orders were made listing the matter for hearing on 4 April 2023 and for the filing of material in advance of the hearing.
On 20 March 2023, the First Respondent filed a written outline of submissions.
On 24 March 2023, procedural orders were made re-listing the matter for hearing on 23 May 2023. Those orders included an updated program for filing which required the Applicant to file and serve any further amended application, submissions and any additional evidence by 2 May 2023 and the First Respondent to file its materials by 9 May 2023.
On 23 May 2023, the matter proceeded to hearing before the Court as presently constituted. The Applicant appeared in person with the assistance of an interpreter and the First Respondent was represented by a solicitor advocate. The Applicant confirmed at the hearing that he did not file an outline of submissions or any further affidavit. The Applicant had received the First Respondent’s written outline of submissions and was afforded an adjournment of the hearing before this Court to have those submissions interpreted with the assistance of the Court-provided interpreter.
At the hearing, the Applicant handed up a document being a Malaysian police report dated 5 June 2016 which was marked by a certified translator as translated to English on 9 May 2023. The document provided that the Applicant reported to the police that he was approached by a group of thugs who were threatening to injure him and his family if he failed to repay a loan of RM 50,000. The report further stated that the Applicant was afraid the group would injure him or his family. The First Respondent did not oppose the very late filing or tendering of the police report.
During the hearing, the Applicant was taken to the police report and was asked to explain to the Court how this document supported his claim that the Tribunal had erred in its decision to affirm the delegate’s decision or otherwise would have changed the outcome for his case. The Applicant did not provide any substantive response. When asked why the Applicant did not present this document before the delegate or the Tribunal the Applicant stated that, although he had obtained the report in 2019, he did not have the police report at the relevant times as his sisters were too busy to retrieve it.
THIS APPLICATION FOR JUDICIAL REVIEW
Grounds of review
By the application filed on 2 February 2018, the Applicant sought relief in the form of an order that the decision of the Tribunal be quashed. He cited the following points under the heading “Grounds of application”:
1.I AM UNSATISFIED WITH MY INTERPRETER DURING MY HEARING SESSION WHOM DID NOT TRANSLATE IN THE SAME WAY AS I MEANT
2.AT THE PARAGRAPH 50 THE TRIBUNAL SAYS DOES NOT ACCEPT THE APPLICANT EVIDENCE IN THAT:
2.1BECAUSE THE TRIBUNAL DID NOT GIVE ENOUGH TIME TO ME PRESENT SUCH EVIDENCE
2.2DURING MY HEARING SESSIONS APPEALS FOR THE TRIBUNAL TO GIVE 3-5 MONTH TO SUBMIT EVIDENCE, HOWEVER THE DECISION RECORD WAS MADE BEFORE THE END OF MY APPEAL.
(sic.)
Statutory context and applicable principles
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 S157/2002 v Commonwealth of Australia [2003] HCA 2 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, 175.
The Applicant filed his application for a protection visa on 6 December 2016, at which time the applicable legislation was the Migration Act 1958 (Cth) Act No. 62 as amended on 18 November 2016. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provide that “a” criteria for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
The proper exercise of statutory functions by an administrative decision-maker are subject of an implied standard of reasonableness: Minister for Immigration v Eshetu [1999] HCA 21 at [126]. It is well settled that legal unreasonableness, as a ground of judicial review, is a high hurdle for an applicant to overcome. It is incumbent on an applicant to establish that there is a realistic possibility that, were the error not made, the decision-maker could have come to a different decision: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [40].
CONSIDERATION
Ground 1
Ground 1 relates to an erroneous interpretation or translation by the provided interpreter.
The Applicant bears the onus to demonstrate that there was a failure by the interpreter and the departure from the standard of interpretation related to a matter of significance to his claims and that there was a sufficient connection between the inadequate translation and the Tribunal’s decision: Perara v Minister for Immigration [1997] FCA 507 at [38]; Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16]-[18].
In the present case, the Tribunal adjourned the hearing on 8 June 2017 and the Applicant attended a resumed hearing before the Tribunal, differently constituted, on 30 October 2017 and presented arguments with the assistance of a different Malay interpreter.
The decision record gives no indication that there were any interpretation issues at either hearing. The Applicant has not provided any particulars as to what errors the interpreter made, at which hearing the issue is alleged to have occurred and/or how it impacted his ability to give evidence or how they were material to a conclusion of the Tribunal.
In the absence of particulars and transcript evidence, it is not possible to conclude that there were deficiencies in interpretation.
Ground 1 does not reveal any error and is dismissed.
Ground 2
Ground 2 is understood to object to the Tribunal’s conclusion that it could not accept his claim that he made an official report to the police in relation to the loan sharks’ threats and harassment which was not acted on due to the fact they were corrupt (at [50] of its Reasons). The ground was put on the basis that the Tribunal did not give the Applicant enough time to provide evidence of the police report and proceeded to decide the review before the additional 3 to 5 months’ time had expired.
It is apparent that the Tribunal did not accept the Applicant’s evidence that he made an official report to the police in relation to the loan shark threat and this finding formed part of its reasons which underpinned the decision to dismiss the application.
An application for judicial review (being a matter of the sort the subject of this proceeding) is ordinarily confined to materials which were before the Tribunal: SZJMG v Minister for Immigration & Citizenship[2008] FCA 1145. It is not open for an applicant to ask that the Court admit new evidence for the purpose of disagreeing with a factual conclusion reached by the Tribunal: MZXHY v Minister for Immigration[2007] FCA 622 at [8] and Gupta v Minister for Immigration [2016] FCA 1004 at [27]. Further, it is generally not open to the Court, on a judicial review application, to consider material which was not before the relevant administrative decision-maker: WZATI v Minister for Immigration & Border Protection[2015] FCA 923 at [70] per Barker J. That principle applies here.
This Court may set aside the Tribunal’s decision upon judicial review if it is affected by jurisdictional error: ss.474 and 476; Plaintiff S157/2002 v Commonwealth[2003] HCA 2. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18 at [56]-[58] per Hayne, Kiefel and Bell JJ.
Taking the Applicant’s submission made at the hearing at its highest, there is no evidence that the police report was before the Tribunal and indeed the Applicant accepted that it was not before the Tribunal. The Tribunal can not have erred in failing to consider something that was not put before it.
There is nothing on the face of the Tribunal’s decision record to indicate that the Applicant requested an additional 3 to 5 months to provide the Tribunal with further evidence.
Further, the Applicant was afforded the opportunity to provide any evidence in support of his original application and may have also sought to provide new evidence to the Tribunal. Regardless of whether the Tribunal would have allowed new information (which would be entirely speculative), the Applicant did not seek to produce the police report for consideration of the Tribunal. The police report was made some 18 months before the resumed Tribunal hearing. The Applicant was not denied the opportunity to table new and relevant information when regard is had to the hearing invitation before the delegate, the delegate’s decision which rejected the claim that he feared and would not be protected by local authorities and the invitation to apply for review before the Tribunal.
Even if there was an error in the Tribunal’s approach to the evidence, I am not satisfied that it was material in the sense that were it known to the Tribunal that it realistically could have resulted in a different outcome.
The second ground can not succeed.
CONCLUSION
For the above reasons, the application for review is dismissed with costs in the amount of $5,000 (being less than the amount in the scale at Part 2 Division 1 Item 3 in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Amendment (2022 Measures No.1) Rules 2022).
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 16 June 2023
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