Awj18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1037
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1037
File number(s): MLG 475 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 16 November 2023 Catchwords: MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal – where applicant claimed harm arising from criminal gangs in Malaysia – where Tribunal rejected applicant’s claims based on a lack of detail in his account of events – where Tribunal recorded alternative finding that based on country information the applicant could obtain adequate protection from authorities – no jurisdictional error in the decision of the Tribunal – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5J, 36, 424A, 499. Cases cited: BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508.
CRI026 v Republic of Nauru (2018) 355 ALR 216; [2018] HCA 19.
Minister for Immigration and Citizenship v SZNCR [2011] FCA 369.
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of last submission/s: 16 October 2023 Date of hearing: 16 October 2023 Place: Melbourne The Applicant: In person Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 475 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application for judicial review filed on 26 February 2018 be dismissed.
2.The applicant pay the first respondent’s costs, fixed in the amount of $4,600.
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 SYMONS:
INTRODUCTION
By an application filed on 26 February 2018 the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 8 November 2016, to affirm a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) visa (visa). The Minister opposes the application. The Tribunal enters a submitting appearance and has not participated in the proceeding.
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia on 13 January 2016 on a tourist visa.
On 19 February 2016, the applicant made an application for the visa.
In Part C of the application form for the visa the applicant identified his reasons for leaving Malaysia. The applicant explained that he worked as a taxi driver and when returning home one day, accidentally hit and killed a man. The police decided the man was drunk and that the applicant was not guilty of any offence. However, the family of the man, who the applicant believes are “mafia”, were dissatisfied with the outcome. One family member (“the guy”) repeatedly demanded money from the applicant. When he refused to pay, the guy kept calling and disturbing the applicant and his family. The family member of the victim tried to kill the applicant and tried to harm the applicant’s brother. The applicant claimed that he went to the police, but no action was taken, and he felt afraid and unable to relocate within Malaysia. The applicant claimed that if returned to Malaysia, the guy would try to look for him for revenge and for this reason, he had asked his family to stay with an aunty who lives 100 miles away (CB 41- 43).
On 8 November 2016, the delegate refused the application for the visa. The delegate refused the application because they were not satisfied that the applicant faced a real chance of persecution for one or more of the reasons identified in subsection 5J(1)(a) of the Migration Act 1958 (Cth) (Act) in Malaysia. The delegate also found, by reference to country information contained in the DFAT 2016 Country Information Report (DFAT Report), that there was nothing in the evidence to suggest that the Malaysian government would fail to provide the applicant with the same degree of protection as that afforded to any of its other nationals (CB 54-60).
On 2 December 2016, the applicant made an application to the Tribunal for review of the delegate’s decision (CB 61-62).
On 14 December 2017, the applicant attended a hearing before the Tribunal in which he gave evidence with the assistance of an interpreter in the Malay and English languages.
On 2 February 2018, the Tribunal affirmed the delegate’s decision to refuse the applicant the visa and published a written statement of decision and reasons (Reasons) (CB 84-93).
THE DECISION OF THE TRIBUNAL
After setting out the procedural background to the review application, the Tribunal identified the criteria for a protection visa and noted that it was required to have regard to Ministerial Direction No.56 made under s 499 of the Act, which required it to take account of policy guidelines prepared by the Department (PAM3) and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent they were relevant to the decision under consideration (Reasons, [10]).
The Tribunal then reproduced the applicant’s claims for protection, as they had been narrated in the answers to questions on the visa application form.
The Tribunal identified the evidence given by the applicant during the Tribunal hearing including that (Reasons, [18]-[23]):
(a)The applicant was working as a taxi driver in June 2014 when he collided with another driver who had run a red light, which resulted in the death of the driver of that car.
(b)The accident occurred on a minor street with little traffic, though the applicant could not recall the exact day or time the accident occurred.
(c)The police investigated the accident and concluded it was not the applicant’s fault.
(d)About one month after the accident, the applicant was threatened by someone who he assumed was the victim’s father, who continued to threaten him and demand RM50,000.00 as compensation for the victim’s death every two to three weeks with the applicant receiving approximately five or six threats from the same individual. Although he was not able to inform the Tribunal precisely the nature of the threat he had received, on one occasion it was a threat to kill the applicant.
(e)The last time the applicant was threatened was in April 2015. He did not receive any further threats up until he left for Australia on 13 January 2016.
(f)The applicant was not able to say if the person threatening him was a member of a gang or the “mafia” as claimed. He did not provide any evidence as to the identity of the person making the threats and said that he had merely assumed the person was the victim’s father based on how he looked.
The Tribunal recorded that during the hearing it had referred the applicant to the DFAT Report in relation to gangs in Malaysia.
The Tribunal noted that the country information indicated that the Malaysian authorities, including the police and judiciary, were reasonably effective in combating criminal gangs and there had been a great deal of coverage in Malaysian media regarding the various operations by law enforcement authorities (Reasons, [29]).
The Tribunal then turned to its assessment of the applicant’s credibility.
The Tribunal noted that it had taken into account the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety and stress caused by separation from home and family. The Tribunal observed that the benefit of the doubt should be given to an applicant who was generally credible but unable to substantiate all of his or her claims (Reasons, [30]).
The Tribunal also acknowledged that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. However, the Tribunal observed that in this case, the applicant had failed to provide any independent evidence of the accident and had failed to provide what the Tribunal described as “plausible, emotionally compelling and/or persuasive answers” to the Tribunal’s questions about the accident and the subsequent threats by an individual the applicant believed to be the victim’s father (Reasons, [35]).
The Tribunal said at [36]:
In all the circumstances that (sic) Tribunal found the applicants evidence to be vague and lack (sic) in detail. A car accident in which a person is killed is a particularly traumatic event. One would expect that a person involved in such an incident would have a good recollection of when and where it occurred. In this case the applicant was not able to tell the Tribunal precisely when and where the accident occurred. In addition, despite the police having made a full investigation of the accident he was not able to provide any independent evidence of the accident having occurred. He was not able to identify the victim or the person who made the threats against him. In addition the applicant was not able to provide specific details as to the nature of the threats against him save to say that the person making the threats wanted RM50,000.00 and had made a threat to kill him. Finally, the applicant had not received any threat against him for a period of almost 9 months before travelling to Australia and claiming that he had a well-founded fear of persecution. As a result the Tribunal does not accept the evidence of the applicant and finds that he does not have a well-founded fear of persecution for any of the reasons detailed in s 5J(1)(a) of the Act. That is, there is no real chance that the applicant will suffer serious harm.
The Tribunal recorded an alternative finding that even if it was to accept the applicant’s evidence in relation to the car accident and the subsequent threats made by a family/gang or mafia member, it was satisfied that effective protection measures were available to the applicant in Malaysia (Reasons, [37]). This finding reflected information derived from the DFAT Report including that “credible local and international sources consider the Royal Malaysian Police to be a professional and effective police force” (Reasons, [38]).
The Tribunal also considered whether the applicant’s claims engaged s 36(2)(aa) of the Act. The Tribunal did not accept that the applicant faced a real risk of significant harm as a foreseeable consequence of being returned to Malaysia based on its earlier findings that it did not accept the evidence of the applicant (Reasons, [42]). The Tribunal also found, based on the country information, that the applicant could obtain protection (from any retaliation from the family member of the car accident victim), such that there would not be a real risk of significant harm to the applicant. The Tribunal found that the applicant did not satisfy s 36(2)(aa) on this alternative basis (Reasons, [43]-[44]).
PROCEEDINGS IN THIS COURT
On 23 January 2019, a Registrar of this Court made procedural orders including that the applicant file and serve at least 28 days before the final hearing, written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence on which he seeks to rely.
Consistent with the procedural orders, the Minister, on 10 July 2023, filed a court book, and on 2 October 2023, filed written submissions. The applicant did not produce any material responsive to these orders.
Grounds of review
The application seeking judicial review filed by the applicant on 26 February 2018 identifies the following grounds of application:
1)During the hearing session I was given a chance to talk but it was under pressure and I’m not really focus to answer the question.
2)I got nervous to answer the question and not really focus to answer the question during hearing session.
3)The interpreter was not explained clearly about the question that was asked by the officer and it was confused.
4)The officer just referred about the point is mentioned about police force in my country from the google internet and not know the real situation I faced and the truth about the point I mentioned.
At hearing, the applicant candidly told the Court that somebody else had prepared his application document and that as a result he was not familiar with the grounds of review. Despite this, the Court did ask the interpreter who was present in Court to assist the applicant to interpret each of the grounds reproduced above and the applicant was given the opportunity to address each ground in turn. The applicant told the Court that he did not wish to add anything to what was already recorded in the application document.
The Court also gave the applicant a number of opportunities to tell the Court, more generally, what concerns he had with the decision of the Tribunal or with the process adopted by it on the review. The applicant made the following submission which again, speaks to his candour:
I don’t have any evidence to support the information that has been provided for this case, because it wasn’t me who did it, for me to tell the truth, this is actually an idea from someone else, to help me apply for visa (a temporary visa) so that I can remain here or stay here or live here temporarily. I know there is nothing much I can do about this case and I hope I will be given more time to manage my private or personal matters before my decision is made in this case.
Minister’s submissions
The Minister’s written submissions were responsive to the matters identified in the application for review.
As to grounds 1 and 2, which refer to the applicant being under “pressure” at the hearing and this inhibiting his answers, the Minister submits that there is nothing in the Tribunal’s reasons which suggests that the applicant was denied a real and meaningful opportunity to participate in the hearing. There was no evidence to indicate that the applicant was mentally incapacitated to a point where he was unable to give evidence, present arguments, or answer questions (referring to Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30]-[34]). It was also the case that the Tribunal demonstrated an awareness of the difficulties that applicants for protection visas might face, including that they might be affected by nervousness and stress.
As to ground 3, which involves a challenge to the standard of interpretation at the Tribunal hearing, the Minister notes that the applicant was assisted by a Malay interpreter and in the context of a hearing that ran for just over one hour, did not apparently (as far as the Reasons illuminate the issue) raise any concerns about the quality of the interpretation or indicate that he was experiencing any confusion as a result of the interpreter. The Minister notes that the credibility findings recorded by the Tribunal, which assumed significance in the rejection of the applicant’s claims, were based on a lack of detail rather than reflecting matters that might suggest the interpretation was compromised. It would follow that any deficiencies in the interpretation, which had not in any case been identified, could not have caused errors material to the conclusions of the Tribunal which were adverse to the applicant (referring to BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310 (BZAID) at [52](3) and (7)).
As to ground 4, the Minister submits that the reference in the applicant’s grounds to information being drawn from an internet (google) search is factually incorrect. Instead, and insofar as the applicant might be understood to take issue with the Tribunal’s reliance on country information to inform its findings about the police and the adequacy of state protection, this ground is without merit.
The Minister submits that the Tribunal was entitled to have regard to the applicable country information and the weight that it gave to such country information was a matter forming part of its fact-finding function.
The Minister notes, as is the case, that the Tribunal was not required to provide country information to the applicant pursuant to s 424A(1) of the Act as this is an excluded class of information under s 424A(3)(a) of the Act. The Minister notes further that the DFAT Report referred to by the Tribunal was the same DFAT Report referred to by the delegate in its reasons for refusing the visa.
More generally, and consistent with his model litigant obligations, the Minister submits that the Tribunal’s dispositive credibility findings were open to it on the evidence and not otherwise affected by error. The Minister also brought to the attention of the Court paragraph [45] of the Reasons which reads: “In all the circumstances the applicant does not have well-founded fear of persecution based on her claim of domestic violence and does not satisfy s 36(2)(a), if he was to return to Malaysia” (emphasis added).
To this paragraph may be added paragraph [49] which reads:
Having considered all the applicant’s claims and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are 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 of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of her life; the death penalty will be carried out on her; she will be subjected to torture; she will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment, as required by s 36(2)(aa) (emphasis added).
CONSIDERATION
Although this is a case where the Tribunal rejected the applicant’s claims primarily because of the lack of detail provided by him, this does not foreclose the possibility that an error or deficiency in the interpretation provided at hearing produced material consequences. It is the case, as observed by Edelman J in BZAID at [52](8) that “it is not necessary, and in many cases, will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding”.
It is readily conceivable that errors of interpretation and/or translation could bear on the intelligibility and level of detail of the evidence and responses provided by a review applicant at hearing, which responses (or lack thereof) in turn might inform credibility findings. However, it is also the case that the onus falls on the applicant for judicial review to identify any deficiencies in the standard of interpretation and/or translation and in this case, not only has the applicant failed to engage with this task but, through his disavowal of the review grounds and his response reproduced at [24] above, has not actively prosecuted any of his grounds of review. In these circumstances and where there is nothing in the Reasons that operates as a “red-flag” about the standard of interpretation, I am not persuaded that there is any merit to the applicant’s grounds of review that seek to impugn the quality of interpretation.
Likewise, there is nothing in the Reasons that suggests the applicant’s capacity to participate in the hearing was impaired to the extent that he was unable to give evidence, present arguments, or answer questions. The applicant appears to have given responsive answers to questions and supplied some information about the car accident and the threats that followed. It was the lack of precision in those answers that appears to have informed the Tribunal’s view of the applicant as a witness.
It is also the case that the Tribunal’s decision is defensible on a separate and independent basis that reflects the findings made, by reference to country information, that the applicant would be afforded state protection by the Malaysian law enforcement authorities. While the applicant’s grounds appear to take issue with the provenance of this country information and potentially, the failure of the Tribunal to disclose this information to him, it is apparent from the Reasons that the country information relied upon was the DFAT Report and that the substance of that report had also featured in the decision of the delegate, a copy of which had been provided by the applicant and was referred to by the Tribunal during the course of the hearing (Reasons, [25], [29]).
As far as the errors identified at [31] and [32] are concerned, while it is regrettable that they made their way into the Reasons I am satisfied, having read the decision as a whole, that they do not disclose an error in the reasoning process employed by the Tribunal. The most likely explanation is that they reflect an error in editing and the use of words cut and pasted from a previous decision in another matter. This highlights the need for care in the writing and revision process but where the Reasons otherwise demonstrate an appreciation of and rational engagement with the applicant’s claims, the errors fall comfortably into the category of inadvertent, rather than substantial (compare CRI026 v Republic of Nauru (2018) 355 ALR 216 at [57]).
DISMISSAL
For the reasons set out above I will make orders that the applicant’s application seeking judicial review be dismissed and the applicant pay the Minister’s costs in the fixed amount of $4,600.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 16 November 2023
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