Avj18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 202

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AVJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 202

File number(s):	MLG 466 of 2018
Judgment of:	JUDGE GIVEN
Date of judgment:	29 February 2024
Catchwords:	MIGRATION – Application for review of decision of Administrative Appeals Tribunal – merits review – whether Tribunal failed to consider applicant’s claims
Legislation:	Migration Act 1958 (Cth) ss 36, 476, 477
Division:	Division 2 General Federal Law
Number of paragraphs:	49
Date of hearing:	29 February 2024
Place:	Sydney
The Applicant:	In person
Solicitor for the Respondent	Mr T Goodwin, Australian Government Solicitor

ORDERS

MLG 466 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AVJ18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	29 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The application filed on 23 February 2018 is dismissed.

2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $7,328.

3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 1 and 2 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.

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).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE GIVEN

1. By an application filed with this Court on 23 February 2018, the applicant appears to seek that time be extended for review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 January 2018, affirming a decision of a delegate of the Minister (delegate) to refuse to grant the applicant a Protection (Class XA) Subclass 866 visa (visa).  The application is referred to as potentially seeking an application for extension of time because it is unclear (from a section of the originating application involving a box-ticking exercise to seek an extension) whether the applicant ticked the “yes” or “no” box.

2. Pursuant to s 477(1) of the Migration Act 1958 (Cth) (Act), any application to this Court for judicial review made under s 476 was required to have been made within 35 days of the date of the migration decision. The instant Tribunal made its decision on 24 January 2018 and, by reference to the date upon which these proceedings were commenced, the application was made 30 days later and is therefore in time. The Minister erred on the side of caution by assuming that the applicant was seeking an extension of time. However, the parties each confirmed at hearing their agreement that an order under s 477(2) of the Act was in fact not required, even if the application might be taken to have initially sought such an order.

   BACKGROUND

3. The background and summary of the Tribunal’s decision are primarily derived from the written submissions of the first respondent.  Unless otherwise indicated, the background does not appear to be in dispute.

4. The applicant is a 35-year-old citizen of Malaysia (Court Book (CB) 38).

5. On 19 March 2016, the applicant arrived in Australia as the holder of a Subclass 601 visa (electronic travel authority) (CB 43).

6. On 10 June 2016, the applicant applied for the visa (CB 5 to 43).

7. On 12 September 2016, the delegate refused to grant the visa as they were not satisfied that the applicant was a person to whom Australia owed protection obligations under s 36(2) of the Act (CB 43 to 52).

8. On 1 October 2016, the applicant applied to the Tribunal for merits review of the delegate’s decision (CB 53 to 54).

9. On 3 October 2017, the applicant attended a hearing of the Tribunal at which he gave evidence and presented arguments (CB 61 to 63).  At the hearing, the applicant provided further documents in support of his application (CB 64 to 68).

10. On 24 January 2018, the Tribunal affirmed the delegate’s decision.

    Claims for protection

11. The applicant claimed protection on the basis that he participated in several of the rallies in Malaysia known as the “Bersih rallies”, which are referred to by consecutive numbers.  The applicant claimed to have attended each of the 2011 rally (Bersih 2), 2012 rally (Bersih 3), and 2015 rally (Bersih 4).  He claimed to have received a warning from a government authority at Bersih 4 following which he did not attend the fifth rally because he was by then a “marked man” (CB 76 at [20]).

12. The claim to have attended Bersih rallies was included in the applicant’s protection visa application (CB 32).  At the Tribunal hearing, the applicant elaborated on the claim to identify which of the Bersih rallies he had attended (CB 76 at [20]). 

13. The applicant also claimed that his wife’s ex-boyfriend (ex-boyfriend) had threatened he and his wife.  The claimed threats included (CB 77 at [25]):

    (1)that approximately 2 or 3 months after he married his wife, the ex-boyfriend said he would kill the applicant if they ever met; and

    (2)that while the applicant’s wife was pregnant, the ex-boyfriend said he would kill the applicant’s first born child.  

14. The claimed threats were allegedly made by notes which had been left on the wife’s car. The applicant told the Tribunal that he had not read or seen these letters, but had been informed about them by his wife.  He said that the threats were made within two years of their marriage, but that he and his wife had not received threats since then (CB 77 at [27]). 

15. The applicant also claimed that the ex-boyfriend killed a cat which was owned by he and his wife (CB 77 at [26]).

    Tribunal Decision

16. The Tribunal gave the applicant the benefit of the doubt and accepted that he participated in the Bersih 2, Bersih 3 and Bersih 4 rallies (CB 81 at [41]).  However, the Tribunal did not accept that the applicant received any threat warning him not to attend Bersih 4, given his inability to give direct and independent evidence of having received said threat (CB 81 at [42]).  The Tribunal noted the applicant’s evidence that he was warned by a representative of the Malaysian government not to attend the fifth Bersih rally, but was not able to say who that representative was, nor in what capacity he or she was acting (CB 81 at [43]).  The Tribunal also observed that the applicant was unable to provide any independent evidence of having received any such warning, nor having suffered any other threat or harassment as a result of his participation in the Bersih rallies (CB 81 at [43] to [44]). 

17. The Tribunal considered DFAT country information about political rallies and law enforcement in Malaysia, which indicated that protesters face only a low risk of arrest when engaging in political rallies (CB 81 at [45]).  

18. The Tribunal found that the applicant was merely a participant in, and not an organiser of, the Bersih rallies and as a result did not have a political profile which would cause him to be of interest to the Malaysian authorities (CB 81 at [45]).  The Tribunal also did not accept that the applicant has suffered any serious harm as a result of his participation in the Bersih rallies, given the absence of independent evidence that the applicant experienced discrimination or harm in Malaysia from those rallies (CB 82 at [46]).

19. The Tribunal also noted that the applicant had provided no evidence to indicate that he was likely to participate in any future, similar rallies (CB 82 at [47]).  It found that, even if he was involved in future rallies, he would merely be a participant, and not involved in any higher capacity (CB 82 at [47]).

20. The Tribunal ultimately found that the applicant did not have a well-founded fear of persecution on the basis of his participation in the Bersih rallies and that those claims did not engage Australia’s protection obligations under ss 36(2)(a) and (aa) of the Act (CB 82 at [48] to [50]).

21. Given the lack of independent evidence to corroborate the alleged threats made by the ex-boyfriend, the Tribunal did not accept those claims to be credible or plausible.  Accordingly, the Tribunal found that there was not a real chance of serious harm arising from any threat/s made by the ex-boyfriend (CB 82 at [51]).  The Tribunal was also not satisfied that there was a real risk that the applicant would suffer significant harm in Malaysia arising from those threats (CB 82 to 83 at [53] to [54]).

22. Having assessed the applicant’s claims individually and cumulatively, the Tribunal found that he did not face a real chance of serious harm (now or in the reasonably foreseeable future) for any reason, and therefore did not satisfy the criterion in s 36(2)(a) of the Act (CB 82 at [52] and [55]).

23. The Tribunal was also 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 was a real risk that he would suffer significant harm arising from his involvement in the rallies or from the ex-boyfriend (CB 83 at [54] and [56]).

    APPLICATION TO THIS COURT

24. Upon commencement of the present proceedings, the matter was initially docketed to another Judge of the Court who, despite the matter having been filed in the Melbourne Registry of the Court and the applicant appearing to be a resident in Victoria, transferred the proceedings to the Sydney Registry.  The first substantive procedural orders were made in the proceedings by a Registrar of the Court on 12 December 2019, by consent.  By those orders, the applicant was granted leave to file any amended application or by 19 March 2020.  The applicant did not file any amended application within that grant of leave, or at all.

25. The proceedings were later placed in the central migration docket and were next called-over on 28 June 2023, on which occasion orders were made for the preparation for hearing, the date for which was to be later advised.  Subsequently, the proceedings were docketed to me and listed for hearing.  On 19 February 2024, the applicant emailed the Court’s Registry to notify a new address (in New South Wales) and telephone number, albeit his email address appears to have remained the same as that provided in the originating application.

26. Despite being asked by the Registry to lodge a Notice of Address for Service to reflect these changes, that has not been done.  In any event, the applicant has attended today by Microsoft Teams.  In the absence of the applicant having provided a formal Notice of Address for Service to reflect his new address in New South Wales, his address for service remains that as provided in the originating application.  This was explained to the applicant at hearing. 

27. The applicant’s appearance by Microsoft Teams was by telephone audio only, with no video.  The hearing was conducted with the assistance of an interpreter in the Malay language, who was present in the courtroom with me.  The Minister is represented by a solicitor who has also appeared by Microsoft Teams.  The connection has been clear throughout the hearing, and the parties, the Court and the interpreter have not had any discernible issues in communicating with, or understanding, one another.  On a few occasions where the applicant wished for statements to be repeated by the interpreter, that occurred.

28. At the commencement of the hearing, I informed the parties that a matter which I had stood down from my morning directions list would need to be interposed at some point in order for orders to be made therein.  That interruption eventually occurred approximately an hour into the applicant’s hearing and during the time in which the Minister’s solicitor was making oral submissions.  The brief interruption of the hearing did not, to my observation, cause any substantive disruption or unfairness to either of the parties.  The applicant was asked to stay in the Microsoft Teams forum, which he did.  The directions matter was interposed for a matter of mere minutes.  The interruption was also made at an appropriate juncture in the Minister’s submissions. 

29. At the commencement of the hearing, I had explained to the applicant the role of the Court and the limitations on the Court’s jurisdiction, and he indicated that he understood.  The Court Book was tendered for the first respondent, without objection, and marked Exhibit “1R”.  An Affidavit of the Minister’s solicitor made on 17 January 2024 was read to address a question arising as to the service of the Minister’s written submissions. 

30. While the applicant’s Affidavit filed in support of his originating application is on the Court file, it was not treated as an Affidavit.  The sole annexure to the document is the Tribunal’s decision, which is already in the Court Book.  The body of that document seeks to raise what can be taken to be an additional ground of review and, accordingly, each of the Minister and the Court treated the ground as raised in the Affidavit as being additional to those raised by the originating application.

31. The Minister filed written submissions, as ordered, in advance of the hearing.  Other than his originating application, the applicant has not filed any other documents. 

    GROUNDS OF REVIEW

32. By the application to show cause, the applicant seeks judicial review of the Tribunal’s decision and raises three grounds.

33. The originating application comprises three grounds of application, as follows (original case) (errors in original):

    1.   BECAUSE THE AAT DOES NOT KNOW THAT ALL THE ‘BERSIH’ LEADERS ARE IN THE MALAYSIAN JAIL OR SKIP FROM MALAYSIA

    2.   IF I RETURN TO MALAYSIA, I WILL BE ARRESTED.

    3.   PREVIOUSLY, ONE OF THE LEADERS ENTERED MALAYSIA, HE WAS ARRESTED THE NEXT DAY AFTER HE ARRIVED.

34. The Affidavit in support of the judicial review application also filed on 23 February 2018 contains one further ground at [2], as follows (Affidavit ground):

    The AAT did not consider about the risks I will face if I return to Malaysia

35. Each of the grounds of review was interpreted to the applicant, and he was given a chance to address them in turn.  The Minister’s written submissions seek to group the first grounds of review together, namely, those which are contained in the originating application, on the basis that each of them makes a statement about factual matters which the applicant says bear on his claims.  Having now heard the applicant’s submissions, including those raised in reply, I agree that each of the grounds is an attempt to reagitate aspects of the applicant’s protection visa claims.  Those submissions include the following. 

    Grounds 1, 2 and 3

36. In respect of ground 1, the applicant told the Court that he does not agree with the current government of Malaysia.  He said that, because of that disagreement he joined the Bersih group and that, whomever joined Bersih, will be arrested.  The applicant said that the Tribunal did not accept that he could not return to Malaysia.  The applicant told the Court that he told the Tribunal that he would be arrested, and yet the Tribunal said that it is “very safe in Malaysia, there’s nothing going on there”.[1] 

    [1] Transcript 29 February 2024 at TS8.13 to 14

37. The applicant reiterated to the Court that he will be arrested on return.  That statement appeared to dovetail with ground 2, in respect of which the applicant said that the Tribunal “only read…the documents…about Malaysia”, but the Tribunal did not “know the real situation” in Malaysia.[2] 

    [2] Transcript 29 February 2024 at TS8.21 to 22

38. In relation to ground 3, the applicant said he had nothing to say.  As I explained several times to the applicant, the Court does not determine for itself the truth or otherwise of his claims, nor have jurisdiction to grant him a visa.  While it is understandable that the applicant wishes to contend for a visa on the basis of what he says are his circumstances and the situation in Malaysia, assessing those claims is no part of the task which this Court has.  To the extent that each of the grounds in the originating application seeks to urge the merit of the applicant’s circumstances on the Court, those are not matters I can take into account in determining the review.  None of the matters which were raised before me today, nor those in the originating application, give rise to a jurisdictional error which would be necessary for the Court to be satisfied that the matter should be remitted for redetermination. 

    Affidavit ground

39. As observed earlier, there is an additional ground of review.  This ground is expressed more properly as an error on the part of the Tribunal than were the grounds in the originating application.  By it, the applicant alleges that the Tribunal did not consider the risks that he will face if returned to Malaysia.  The ground was, again, interpreted to the applicant and he was asked to speak to it.  The applicant said that the Tribunal “refused [his] reasons”.[3]  The applicant said that the “Tribunal only read the documents [to him]” and said that “it was safe and there’s nothing going on there”.[4]

    [3] Transcript 29 February 2024 at TS9.6

    [4] Transcript 29 February 2024 at TS9.8 to 9

40. The applicant contended that he “know[s] everything that had happened [in Malaysia] and all the Tribunal did was just use the media”.[5]

    [5] Transcript 29 February 2024 at TS9.8 to 9

41. Contrary to the applicant’s submissions, the Tribunal expressly considered the applicant’s evidence that he participated in Bersih 2, Bersih 3, and Bersih 4, including that after Bersih 3 his wife received a letter in which he was warned not to attend any more rallies, and that at Bersih 4 he was warned by a representative of the government not to attend the fifth rally (CB 76 at [20] to [22] and CB 81 at [42] to [43]).  

42. The Tribunal accepted that the applicant attended the rallies (CB 81 at [41]), but did not accept that he received any warnings regarding further attendance (CB 81 at [42] to [43]). These findings, together with the applicant’s evidence that he attended the Bersih rallies only as a participant and not in an higher capacity, led the Tribunal to conclude that he did not meet the visa criteria under s 36(2) of the Act (CB 82 at [47] to [50].).

43. To the extent the applicant cavils with the findings the Tribunal made in relation to his attendance at the Berish rallies, I agree that the applicant again seeks to engage the Court in impermissible merits review.

44. To the extent that the applicant seemed to be making a complaint that the Tribunal referred to independent country information and media articles, that source material is referred to in the Tribunal’s decision.  The existence of those references is in and of itself, unremarkable.  By itself, the Tribunal’s reliance upon such independent material does not give rise to a jurisdictional error, even if the applicant subjectively considers that he is better placed than the Tribunal to understand the situation in Malaysia.

45. As I also explained to the applicant a number of times during the hearing, there is a difference between a failure on the part of the Tribunal to consider his claims, and a failure to accept them.  Provided that the conclusions to which the Tribunal came in rejecting the claims were open to it on the materials, there is no error.  The applicant has expressed his discontent with the Tribunal’s conclusions that he will not face the requisite harm on return and, as such, that he is not a person to whom Australia owes protection obligations.

1. That unhappiness is understandable.  However, it is not a basis upon which the Court can remit the matter to the Tribunal.  Overall, I am satisfied that the decision of the Tribunal is not affected by a jurisdictional error.  Absent a jurisdictional error, the decision is a privative clause decision, and should be dismissed. 

   COSTS

2. Consequent upon the dismissal of the application, the Minister sought an order for costs.  By the Minister’s written submissions, an amount was sought which was a scale amount at a midpoint in the proceedings between the time they were commenced and the present date.  In oral submissions, that costs application was amended to seek the scale amount under the Court’s Rules as at the time that the proceedings commenced, being is $7,328. 

3. The applicant made submissions asking whether or not he could pay in instalments.  I explained to him that he would receive correspondence from the Minister’s solicitors informing him of options in that regard.  The applicant also asked if the amount could be reduced.  I indicated that the Minister had already sought to reduce the amount today, and that I would hear him if his application for a reduction was based on a submission that he could substantiate to the effect that it was unreasonable in the context of the proceedings, as opposed to a submission to the effect of his inability to make that payment at this time.  The applicant had no further submissions to make. 

4. In this matter, I am satisfied that costs ought follow the event.  I am also satisfied that the amount sought, namely, $7,328, is reasonable having regard to the nature of the matter, the duration of the time in which it has been on foot and the amount sought in contrast to the current scale amount under the Court’s Rules. 

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       4 March 2024