Asn17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 722
Federal Circuit and Family Court of Australia
(DIVISION 2)
ASN17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 722
File number(s): MLG 340 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 2 September 2022 Catchwords: MIGRATION – protection visa application – application for judicial review – decision of the Administrative Appeals Tribunal – whether jurisdictional error – whether the Tribunal correctly interpreted and applied the definition of “refugee” under s 5H and “well-founded fear of persecution” under s 5J of Migration Act – whether the Tribunal took into account all evidence before it – whether the Tribunal failed to provide the Applicant with the opportunity to present documents – whether the Tribunal impermissibly relied on information not put to the applicant – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36(2)(aa), 424A, 476 Cases cited: BJG15 v Minister for Immigration and Border Protection [2018] FCA 251
CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZZNK v Minister for Immigration and Border Protection [2015] FCA 217
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 10 August 2022 Place: Hobart For the Applicant: In person Counsel for the Respondents: Mr Macauley Solicitor for the Respondents: Clayton Utz ORDERS
MLG 340 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASN17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
2 September 2022
THE COURT ORDERS THAT:
1.The application filed 21 February 2017 is dismissed.
2.The Applicant pay the First Respondent’s costs in the fixed the sum of $7,206.00.
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 Taglieri
This application for review concerns the refusal of a Protection visa application made by the Applicant on 7 December 2015. A delegate of the First Respondent had refused the Protection visa on 22 March 2016, and on 31 March 2016 the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the delegate’s decision.
Following a hearing, the Tribunal affirmed the decision of the First Respondent’s delegate not to grant the Protection Visa.
The Applicant now applies to this Court for a review of the Tribunal decision made on 14 February 2017 by way of an application filed 21 February 2017.
BASIS OF tRIBUNAL DECISION
The Tribunal concluded that it was not satisfied that the Applicant met the requirements of section 36 of the Act to be eligible for a Protection Visa. It had concerns about the reliability of some of the Applicant’s evidence.[1] Despite this it stated:
Notwithstanding these concerns, the Tribunal gives the applicant the benefit of the doubt and accepts that he came to Australia because he was being pressured by his mother and older brother to marry his cousin, something that neither he nor his cousin wished to do. The Tribunal also accepts that the applicant is concerned that if he returns to Malaysia, he will again come under pressure from his mother and brother, and his cousin's family, to marry his cousin.
[1] Tribunal’s reasons for decision at [27].
At [28] of its reasons, the Tribunal made findings that:
·Should he come under pressure to marry his cousin on return to Malaysia, he could decline without suffering serious harm;
·The Applicant had not experienced harm in Malaysia before coming to Australia when declining to marry his cousin;
·The Applicant may face verbal and psychological pressure to marry his cousin, but does not have to bow to the pressure because of shame or embarrassment felt by his mother because of indebtedness;
·The Applicant’s mother has accepted that he will not agree to marry his cousin.
Based on the summarised findings referred to above, the Tribunal was not satisfied that the Applicant was at risk of serious harm, such as threats to life or liberty, significant physical harassment or ill-treatment, thereby failing to establish as required by section 5H and 5J, a well-founded fear of persecution.
The Tribunal then considered relevant country information and set out in some detail what it took that information to indicate. This was the similar information to that which the Tribunal had discussed with the Applicant during the hearing. The member concluded:[2]
However, the Tribunal considers that the country information indicates that there are avenues of redress and support available to the applicant in Malaysia, through the law, the police and governmental and non-governmental domestic violence support agencies, if he feels at any time that he faces a threat of serious harm on his return to Malaysia because he refuses to marry his cousin.
[2] Tribunal’s reasons for decision at [30].
Relying on the same summarised factual findings referred to at [5] above, the Tribunal concluded that the Applicant did not qualify for a Protection visa pursuant to the complementary protection provisions in s 36(2)(aa) of the Act. It stated at [34] of its reasons for decision:
…the Tribunal does not accept that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm from his family, his cousin's family or anyone else.
Court Review
A review to this Court is authorised by s 476 of the Migration Act 1958 (Cth) (“the Act”). In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
Grounds of review
The application for review filed on 21 February 2017 sets out 11 sequential paragraphs under the heading “Grounds of application”. Most paragraphs do not specify in any coherent or clear way what the Applicant contends to amount to jurisdictional error. Instead, Paragraphs 1 to 3 and 5 to 7 are a narrative; the Court will treat these as submissions as they do not constitute proper grounds of review. Paragraphs 4 and 8 to 11 might be taken to assert a recognised form of jurisdictional error. As the Applicant is a non-lawyer and has apparently prepared and filed the application himself, I will to the extent possible interpret what they allege to be the jurisdictional error(s).
Hearing on 10 August 2022
At the hearing of the application for review on 10 August 2022 (“the hearing”), the Applicant appeared electronically via Microsoft Teams, representing himself.
At a directions hearing on the 16th of December 2021, I had made orders preparatory for the hearing and noted that the Applicant required the assistance of a Malay interpreter for the hearing. A Malay interpreter attended the hearing via Microsoft Teams also and provided the necessary interpretation for the Applicant.
At the commencement of the hearing, with the assistance of the interpreter, I established that the Applicant relied upon his application filed on 21 February 2017. I observed that no other documents appeared to have been filed by the Applicant and he agreed that that was the case.
I enquired whether he agreed that the Court should receive the Court Book filed by the First Respondent on the 30 of August 2017 as evidence. He stated that the Court could do so and he also indicated that he had received a copy of it.
The First Respondent had filed written submissions on 25 July 2022. I confirmed through the interpreter that the Applicant had received a copy of those submissions. On my enquiry of whether the Applicant understood the submissions, the Applicant stated he did not understand them and had tried to have someone explain those to him, but the person had cheated him.
In view of this response, I suggested that we proceed with the hearing by the First Respondent making its submissions orally so that they could be interpreted into the Malay language for the Applicant to understand, and then he could respond as he considered appropriate. This suggested course was agreed.
The first respondent's contentions
The First Respondent’s legal representative indicated that reliance was placed on the Response filed on 6 March 2017, the written submissions filed on the 25 of July 2022, and a list and bundle of authorities which were forwarded to the Court Associate. The authorities had also been sent to the Applicant.
It was submitted that the grounds contained in the application were not grounds of review at all. Further, that they seek an impermissible merit review. On this basis, it was argued that the application could be dismissed on that basis alone, relying on WZATH v Minister for Immigration and Border Protection [2014] FCA 969 and CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132.
In the alternative to the above submissions, the First Respondent submitted that the Tribunal had correctly applied the relevant law, contrary to that alleged in Paragraph 8 of the “grounds” of the application. In particular, the Tribunal had correctly interpreted and applied the definition of “refugee” under the s 5H of Act, as is evident from its written reasons for decision at [6] to [8].
Further, it was submitted that the Tribunal member had at [23] correctly identified the issues on the review being:
(1)If there was a well-founded fear of persecution, as required by s 5J of the Act; and
(2)Whether the Applicant met the criteria for complementary protection under s 36(2)(aa) of the Act.
Referring to [13] to [22] of the Tribunal’s reasons for decision, the First Respondent submitted that the Applicant’s evidence had been correctly identified and set out, and therefore had been considered.
The First Respondent submitted that the Tribunal had made findings at [25] to [31] of the reasons for decision and in making those relied on country information about the Malaysian police force.
The First Respondent submitted that, on the evidence, the Tribunal was not satisfied that there would be a real chance of the Applicant suffering serious harm should he return to Malaysia.[3] It also considered the complementary protection provisions under the Act, but rejected the proposition that there was a real risk of the Applicant suffering significant harm as a necessary and foreseeable consequence of his removal to Malaysia.[4]
[3] Tribunal’s reasons for decision at [31] and [32].
[4] Tribunal’s reasons for decision at [34].
Based on all the foregoing submissions, the First Respondent concluded that there was no jurisdictional error demonstrated.
The First Respondent’s representative also acknowledged that Paragraphs 8 and 9 under the heading “Grounds of application” could be taken to assert a failure by the Tribunal to afford procedural fairness to the Applicant. If it were suggested that the assertion is based on a claim that the Tribunal had not given the Applicant a fair opportunity to present his case, this is not borne out by the documents in the Court Book. They show that the Applicant attended the hearing and gave evidence, commented on issues during the hearing and had sufficient notice of those issues as they were issues that had been raised by the delegate’s decision.
To the extent that the Tribunal relied on country information at the hearing, the First Respondent submitted that there was no requirement to put that information to the Applicant under s 424A of the Act as country information falls within the exception in s 424A(3)(a) of the Act.
In respect of the Paragraph 9 under the heading “Grounds of application”, which asserts a failure to give the Applicant an opportunity to bring physical documents from Malaysia to support his application, is without substance. The First Respondent submitted that there is nothing to suggest that the Applicant sought an opportunity to present further documents or that the Tribunal refused it.
The Court was referred to the hearing invitation from the Tribunal commencing at page 89 of the Court Book. It was submitted that the Tribunal specifically invited the Applicant to provide additional information upon which he relied. No additional information was provided, although the Applicant had been afforded an opportunity to do so. The First Respondent submitted that there was no breach of the requirement of procedural fairness.
Applicant’s position
At the end of the submissions for the First Respondent, which were translated into Malay, I enquired whether the Applicant wished to say anything. He said he had heard the submissions for the First Respondent and simply stated that after his visa had been refused he went to a lawyer, but the lawyer had tricked him.
No detail was given in respect of this and I enquired of the Applicant whether despite what he said about being tricked, had he told the Tribunal the truth at the hearing? He stated that he had been truthful and did not seek to make any other statement or submission.
I also explained to the Applicant, through the interpreter, that the First Respondent sought an order for costs against him should his application for review be dismissed. I asked the Applicant if he wanted to say anything about the question of costs and he stated “No”.
Evaluation – Jurisdictional error?
The Tribunal concluded that it was not satisfied the Applicant was a person to whom Australia had protection obligations.[5] The reasons for arriving at this conclusion are set out clearly from [23] of the reasons for decision. They demonstrate correct engagement with the relevant statutory provisions applying to Protection Visas, including proper consideration and determination of whether the Applicant was eligible as a “refugee”, alternatively if he would suffer significant harm if returned to Malaysia.
[5] Tribunal’s reasons for decision at [32] and [33].
Much of that contained in the Application for Review fails to articulate coherently what is alleged to be the jurisdictional error. Instead Paragraphs 1 to 3 and 5 to 7 are background narrative or generalised statements concerning the Applicant’s claims for protection.
Although the Applicant asserts at Paragraph 8 of the application that the Tribunal has misinterpreted the definition of “refugee” in the Act, he has not articulated in any way how it did so.
Having reviewed the Tribunal’s reasons for decision at [5] to [10] and application of those principles to the findings made at [27] to [35], there is no legitimacy in the contention that the Tribunal incorrectly applied the provisions of the Act applicable to protection visas.
It is self-evident from the Tribunal’s reasons that the member considered first, the issue of whether the Applicant had persuaded the Tribunal that he had a well-founded fear of persecution or suffer significant harm if he returned to Malaysia.[6] The member then also considered if the complementary protection requirements were satisfied and was not persuaded they were.[7]
[6] Section 36(2)(a) and 36(2)(aa)
[7] Tribunal’s reasons for decision at [33] to [35].
To the extent that Paragraphs 8, 9 and 10 of the application assert jurisdictional error on the basis of a failure to afford procedural fairness, either at the hearing or by depriving the Applicant from producing documents, I accept the submissions made by the First Respondent referred to at [25] and [26] of these reasons. I have carefully reviewed the Court Book and noted the relatively brief procedural history leading up to the Tribunal hearing. I have taken particular note of the content of the documents relating to the Tribunal conducting its hearing as appear at pages 81 to 106 of the Court Book. These documents establish that the Tribunal proceeded on the basis of what the Applicant had provided and that he did not seek to offer any additional documents. They also do not suggest in any way that the Applicant asked to be able to provide other documents either during the hearing or afterwards.
The Tribunal’s reasons for decision reflect that it took evidence from the Applicant and it enquired if the persons identified as witnesses in the Applicant’s response to hearing invitation, being his partner and his mother, would be giving evidence. The Applicant informed the Tribunal that they would not be.[8]
[8] Tribunal’s reasons for decision at [13].
Implicit in the narrative and claims contained in the application for review and specifically in paragraph 4, there is an underlying suggestion that the Tribunal member did not have proper regard to evidence given by the Applicant about his individual circumstances and instead had relied on country information.[9]
[9] Application for Review filed 20 February 2017 at Paragraph 4 under heading “Grounds for review”.
The weight which should be given to the Applicant’s evidence was a matter for the Tribunal.[10] It was entitled to take into account country information as it was plainly relevant to the Applicant’s claims for protection. Furthermore, it was not required to give the Applicant prior notice of its reference to the country information as it fell within the exception of being information that was not specifically about the Applicant within the meaning of section 424A (3)(a) of the Act.[11]
[10] MZZNK v Minister for Immigration and Border Protection [2015] FCA 217 at [48].
[11] BJG15 v Minister for Immigration and Border Protection [2018] FCA 251 at [43].
In any event, it is clear from [22] of the Tribunal’s reasons for decision that information about laws in Malaysia and the effectiveness and professionalism of the Royal Malaysian Police was put to the Applicant. In response, the Applicant stated that he did not wish to comment on the information. Relevantly, he did not seek time to respond or ask for the hearing to adjourn.
There is no jurisdictional error demonstrated on the basis of what is set out in the application at Paragraph 11 under the heading “Grounds for application”. As I explained to the Applicant through the interpreter during the hearing, the function of the Court is to undertake a review to ascertain whether the Tribunal’s decision is infected by jurisdictional error, which is a particular legal concept. I emphasised that the Court does not conduct a merits review and cannot substitute its own decision for the primary decision or that of the Tribunal.
Finally, to the extent that the Applicant refers to being tricked by a lawyer or migration agent, there are other avenues that the Applicant may seek to pursue redress in this respect. Lawyers are governed by professional practice standards, but this Court has no function or authority in relation to enforcing those standards. More importantly, the Applicant has not advanced any evidence about or argument as to how his claim that he was tricked or cheated by a lawyer is relevant to the issue of jurisdictional error. Accepting that he may have been tricked, I cannot be satisfied that this was material to the decision taken by the Tribunal, particularly so because the Applicant says that he told the Tribunal the truth.
If the claim of being tricked by a lawyer or migration agent is intended to amount to an allegation of fraud within the context of the decision in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, this claim has no substance without more and, in particular, without evidence demonstrating a fraud.
Regrettably for the Applicant, nothing that he has put before the Court is capable of establishing jurisdictional error and the application is dismissed.
Noting that the First Respondent sought an order for costs during the hearing in the fixed sum of $7,206.00 and that the Applicant made no submissions as referred to at [31] of these reasons, the usual rule that costs follow the event should apply.
I certify that the preceding forty-five (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 2 September 2022
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