Asr18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 352
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 352
File number(s): MLG 415 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 24 April 2024 Catchwords: MIGRATION – application for judicial review – where the applicant and her partner, ASQ18, had their applications for review heard by the Tribunal at the same time – where Administrative Appeals Tribunal affirmed decision of first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 – if jurisdictional error is found in relation to the Tribunal’s decision as to ASQ18, then such error would be transposed into the Tribunal’s decision as to the applicant – no jurisdictional error found in relation to ASQ18 – no jurisdictional error established in relation to applicant – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 474, 476 Cases cited: ASQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 351
Craig v South Australia (1995) 184 CLR 163
MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272;
NAHI v MIMIA [2004] FCAFC
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 18 March 2024 Place: Melbourne Counsel for the Applicant: Mr Barron Solicitor for the Applicant: Lander & Rogers Lawyers Solicitor for the First Respondent: Sparke Helmore Counsel for the First Respondent: Mr Barrington Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 415 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASR18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The Amended Application filed 19 February 2024 be dismissed.
2.The Applicant pay the First Respondent’s costs in an amount to be fixed if not agreed.
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 J YOUNG:
INTRODUCTION
Before the Court is an Amended Application filed on 19 February 2024, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 25 January 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa.
CONTEXT
The applicant is a citizen of Malaysia.
On 11 April 2016 the applicant entered into Australia on a Visitor UD-601 visa.
On 31 May 2016 the applicant applied for a Protection (subclass 866) visa (Visa). The applicant’s claims were set out in her Visa application. Relevantly, the applicant claimed that:
(1)she left Malaysia due to increasing economic turbulence as she found it difficult to obtain employment as a graduate;
(2)she is an independent person and does not expect money from her parents;
(3)she has debts from studying and is required to pay them as soon as possible before her name is blacklisted;
(4)she has chosen to come to Australia to develop herself and be in a position to pay the debts she gained while studying, and once she secures her financial future she hopes to study further;
(5)if she returns to Malaysia she will probably become unemployed and face a dark future due to the many new graduates and dwindling job opportunities, and her problems will probably get worse;
(6)she has not experienced any harm in Malaysia and does not think she will be harmed or mistreated if she returns to Malaysia;
(7)she did not attempt to move and does not believe she could relocate if she returned as the laws are the same throughout the country; and
(8)she does not believe the authorities will protect her as everyone is subject to the same government.
On 21 October 2016 the Delegate refused to grant the applicant the Visa.
On 9 November 2016, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant provided the email address “[email protected]” (applicant’s email address), and the mobile number “xxxxx xxx00” (applicant’s mobile) in the application for review.
On 8 November 2017, the Tribunal emailed the applicant inviting the applicant to attend an in-person hearing on 8 December 2017 at 9.30am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 12 November 2017 the applicant emailed the Tribunal a completed ‘Response to hearing invitation’ form in which she confirmed she would participate in the hearing. The form also indicated that the applicant was in a same-sex relationship, that she came to Australia from Malaysia with her partner (ASQ18), and that she would require her partner to appear at the hearing as a witness.
On 8 December 2017 the applicant and her partner appeared before the Tribunal at a joint hearing and gave evidence with the assistance of an interpreter in the Malay and English languages.
On 15 December 2017, the Tribunal emailed the applicant inviting the applicant to attend a further hearing on 22 January 2018 at 9.00am.
On 22 January 2018 the applicant attended a further hearing before the Tribunal with her partner and gave evidence with the assistance of an interpreter in the Malay and English languages.
On 25 January 2018 the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa. On 30 January 2018, the Tribunal sent a copy of its decision and reasons to the applicant’s email address.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 25 January 2018 (Tribunal Decision).
At paragraph [10] of the Tribunal Decision, the Tribunal summarised the applicant’s claims.
At paragraph [19] of the Tribunal Decision, the Tribunal made findings accepting that the applicant is in a same sex relationship and had been since 2013. Further, the Tribunal accepted that the applicant and her partner openly expressed their relationship in public in Malaysia and received looks and sometimes verbal taunts, and that while in Australia they are able to express their relationship more openly.
At paragraphs [21] – [22] the Tribunal considered the applicant’s economic circumstances. The Tribunal did not accept that there is a real chance or a real risk that the applicant would face serious or significant harm in the form of poverty, destitution or an inability to cater for herself due to the economic circumstances in Malaysia.
At paragraphs [23] – [24] the Tribunal considered the applicant’s claims to fear harm from her family for reasons of being in a same sex relationship. The Tribunal found that the applicant’s fears of her family wishing the applicant and her partner to no longer be together and that they would not be allowed to live in the applicant’s parents’ house any longer did not amount to serious or significant harm. Further, the Tribunal found that the emotional harm that the applicant fears did not amount to serious or significant harm.
At paragraphs [25] – [32] the Tribunal considered the applicant’s claims to fear harm from people in Malaysia for reason of being in a same sex relationship. The Tribunal found that the harm the applicant faced in the past, being one or two verbal taunts over two years, is representative of the harm that the applicant would face into the future as the applicants were openly affectionate in Malaysia as they are here in Australia but only less often and with caution. The Tribunal considered whether the applicant would face serious or significant harm if she were to act in Malaysia as she has in Australia, and found that there would be an increase incidence of harm but not an increased intensity which would not amount to serious or significant harm.
Accordingly, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under sub-ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act). Further, the Tribunal found there was no suggestion that the applicant satisfied s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfied sub-ss 36(2)(a) or (aa) and who held a protection visa.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal Decision on 19 February 2018. The applicant filed an Amended Application on 19 February 2024.
The Amended Application contains the following ground for judicial review (without amendment):
1.The Second Respondent fell into jurisdictional error in determining that the Applicant could not satisfy s 36(2)(b) or (c) of the Migration Act 1958 (the Act), as she was not a member of a family unit of a person to whom a protection visa was granted.
Particulars
a.The Second Respondent accepted that the Applicant and her partner, ASQ18, were in an intimate relationship, had been so since 2013, and had resided together before and after coming to Australia.
b.The Applicant and ASQ18 were thus de facto partners to one another, and members of each other’s family units for the purposes of the Act.
c.The Second Respondent determined that ASQ18 was not entitled to the grant of a protection visa. However, ASQ18 asserts that that decision was affected by jurisdictional error on three bases.
d.The Applicant adopts the grounds advanced by ASQ18 to say that the Second Respondent’s decision in her matter was affected by jurisdictional error.
e.The jurisdictional error in ASQ18’s matter was transposed into the Applicant’s matter by virtue of the Second Respondent’s finding that she was not eligible for a protection visa under s 36(2)(b) or (c).
The applicant also filed the following material:
(1)an affidavit filed on 19 February 2018 which annexed the Tribunal Decision; and
(2)written submission filed on 19 February 2024.
The Minister filed a Response on 13 March 2018. The Response contained the following grounds:
1.The application for judicial review does not provide any particulars or any legal ground of review.
2.The application invites the Court to undertake a review of the merits of the Tribunal’s decision. To engage in fact finding about the merits of the applicant’s case is no part of the function of the Court: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v MIMIA [2004] FCAFC at [10].
3.The application for judicial review does not establish any jurisdictional error in the decision of the Administrative Appeals Tribunal dated 25 January 2018.
The Minister also filed written submissions on 4 March 2024.
The Hearing
The hearing took place on 18 March 2024.
As set out above, the applicant is the partner of ASQ18.
ASQ18’s Application for judicial review of the Tribunal’s decision affirming a decision of a delegate of the Minister to refuse to grant ASQ18 a Protection (subclass 866) visa was heard immediately before the present Application.
STATUTORY FRAMEWORK
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) 211 CLR 476 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 at [175].
CONSIDERATION
Notwithstanding the parties’ submissions as filed, at the hearing the parties agreed that the only matter necessary for the Court to determine was whether jurisdictional error was established in relation to the Tribunal’s decision as to ASQ18.
The applicant submitted that if jurisdictional error was so established then such error would necessarily be “transposed or imported” into the Tribunal’s decision as to ASR18.
The Minister accepted that if such error was so established, it would be appropriate to also find jurisdictional error in relation to the Tribunal’s decision as to ASR18
The parties relied upon their respective submissions in ASQ18.
For the reasons set out in ASQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 351 I have concluded that none of the grounds advanced by ASQ18 establish jurisdictional error on behalf of the Tribunal in that matter.
Accordingly, no jurisdictional error on the Tribunal’s behalf is established in relation to ASR18.
DISPOSITION
For the above reasons, the Amended Application must be dismissed.
The Minister seeks that the applicant pay its costs. I shall order that the applicant pay the Minister’s costs in an amount to be fixed, if not agreed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 24 April 2024
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