AWN18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 386
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWN18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 386
File number(s): MLG 479 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 12 May 2023 Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – citizen of Malaysia – applicant claimed to fear persecution on the basis of her religion and gender – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Cth) ss.36(2), 424A, 424AA, 425, 426A(1A), 474, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Amendment (2022 Measures No.1) Rules 2022)
Cases cited: Craig v South Australia (1995) 184 CLR 163
Minister for Immigration v Eshetu [1999] HCA 21
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SYBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46
SZMMP v Minister for Immigration and Citizenship [2009] FCA 233
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submission/s: 20 April 2023 Date of hearing: 27 April 2023 Place: Melbourne The Applicant: Appeared in person Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 479 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWN18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
12 MAY 2023
THE COURT ORDERS THAT:
1.The application filed on 26 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
INTRODUCTION
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.
For the reasons that follow, the application is dismissed with costs.
CONTEXT
The Applicant is a female citizen of Malaysia. She is of Dusun ethnicity and Christian faith.
On 19 December 2016, the Applicant arrived in Australia on a UD-601 Electronic Travel Authority visa.
On 14 March 2017, the Applicant applied for an XA-866 Protection visa (the Visa application) and was granted the associated bridging visa.
On 5 July 2017, a delegate of the First Respondent Minister refused to grant the Applicant’s Visa application.
On 20 July 2017, the Applicant applied to the Tribunal for review of the delegate’s decision.
On 15 December 2017, the Tribunal invited the Applicant to attend a hearing on 8 February 2018.
On 4 February 2018, the Applicant provided the Tribunal with her response to that invitation.
On 8 February 2018, the Tribunal heard the matter. The Applicant attended with the assistance of an interpreter.
Also on 8 February 2018, the Tribunal delivered oral reasons for its decision to affirm the delegate’s decision. A written record was subsequently produced and is dated 22 March 2018 (Reasons).
The Tribunal’s Reasons
In its Reasons, the Tribunal acknowledged and summarised the Applicant’s claims and evidence, including more detailed claims made at the Tribunal hearing: Reasons, at [6]-[17]. In summary, the Applicant’s claims were that:
(a)She had worked as a volunteer collecting signatures for the Sabah Sarawak Union – United Kingdom and therefore feared harm because such volunteers are threatened by the Malaysian Government and charged under the Sedition Act;
(b)She feared harm in the form of discrimination due to her Christian religion and Dusun ethnicity;
(c)She had been subject of various threats. One such threat was an assault of a sexual nature, by a person she could not name, who said: “You are a woman. I can assault you.”; and
(d)She would not face a future of employment and would be blocked from future opportunities, and had left the country because of blocked job opportunities.
At [18], the Tribunal commenced to make findings about the Applicant’s claims. Relevant to its refugee assessment for the purposes of s.36(2)(a), the Tribunal found that (for the reasons which followed, which may be understood to be a reference to those at paragraphs [19] to [27]): the Applicant had failed to demonstrate that she would suffer any chance of serious harm upon return to Malaysia or that she faced a real risk of significant harm on return. The Tribunal also found that the Applicant had provided such undetailed, inconsistent and illogical evidence that her claims were not to be believed. Specifically, the Tribunal found:
(a)At [19] and [20], it was not accepted that the Applicant had worked for Sabah Sarawak Union – United Kingdom or any other opposition group or group claiming Sabah Sarawak rights and it was not accepted that there was a petition signed or propagated by the Applicant or that the Applicant was involved with talking to friends and strangers about the merits of the independence movement.
(b)At [21]-[22], it was not accepted that there were incidents of violence against the Applicant.
(c)At [23]-[24], it was not accepted that the Applicant was subject of threats made on Facebook or to throw a dog’s head and it was found that no dog’s head was ever thrown. None of the other alleged threats were accepted, including threats of sexual violence which the Tribunal found was a claim that was added to in a very confusing circular way as an afterthought when talking about the alleged bus stop incident. It was not accepted that individuals at university made any sort of threat when the Applicant was in Australia or that they existed at all and there were no death threats or threats to property or any other kind of threats by those individuals.
(d)At [25], it was not accepted that a palm oil company removed land of the family of the Applicant and her claims in this respect were found to defy credibility.
(e)At [26], it was not accepted that because the Applicant did not do things in public she was at greater risk and could be murdered without anybody knowing and her claims in this respect were found to be an improbable and conspiratorial theory.
(f)At [27], that the Applicant did not meaningfully respond to the country information about how Christians can go about freely worshipping in Malaysia or at all as to how restriction of the word Allah impacted on the Applicant. Further, that the Applicant had not claimed to face a risk of significant harm for any other reason upon return.
The Tribunal also recorded that it had put information to the Applicant pursuant to s.424AA of the Act. Essentially, seeking her comment on many other extremely similar written applications that had been before the Tribunal. The Tribunal did not accept the Applicant’s response that perhaps there were many people who had asked the same person to fill in the forms for them. The Tribunal considered this response to be an admission that the claims were not tailored to the Applicant and, rather, applied to other people in her situation: Reasons, [16].
In relation to its complementary protection assessment for purposes of s.36(2)(aa) of the Act, the Tribunal noted that the “real risk test” imposed the same standard as the “real chance test” applicable to the assessment of a “well-founded fear” (relevant to the refugee assessment for purposes of s.36(2)(a)). And, for the same reasons earlier articulated, did not accept that the Applicant would be significantly harmed on the bases claimed. By way of example, the Tribunal stated that it did not accept any of the Applicant’s evidence of discrimination on the part of employment or other similar opportunities.
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 she were to return to Malaysia: Reasons, [30]-[31].
Proceedings before this Court
On 26 February 2018, the Applicant filed an application for judicial review, a notice of address for service which confirmed that she was self-represented and an affidavit sworn that same day. By that affidavit, the Applicant relevantly deposed:
1.My fear is genuine and I have well-founded fear of persecution in Malaysia. I am from Christian religion but I have found very hard while I am in SABAH, Malaysia, it can’t be explained in words.
2.Due to exceptional circumstances I have entered in to Australia to save myself and for women Malaysia is tough country. And also men could survive but not women.
3.I will do the written submission at a later stage as I have done previously to tribunal.
4.All claims are written in Application for Review application are genuine and authentic.
(sic.)
On 13 March 2018, the First Respondent filed a response.
On 17 January 2019, the First Respondent filed a court book.
On 23 January 2019, procedural orders were made for the filing of material in advance of the hearing with a future hearing date to be advised.
On 25 May 2022, procedural orders were made changing the name of the First Respondent to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
On 16 March 2023, the parties were notified of a hearing scheduled for 27 April 2023 before the Court as presently constituted. By the procedural orders, materials were due to be filed by 13 April 2023 for the Applicant and 20 April 2023 for the First Respondent.
On 18 April 2023, the First Respondent filed and served an outline of written submissions.
On 20 April 2023, the First Respondent filed a bundle of authorities and an affidavit of a Ms Tareena Martin, solicitor for the First Respondent. The affidavit of Ms Tareena Martin confirmed that the Applicant had been served with the court book and the First Respondent’s outline of submissions at her nominated email and postal addresses.
On 27 April 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. The Applicant confirmed that she had received the First Respondent’s submissions. The hearing was initially stood down to afford the Applicant time to consider the First Respondent’s submissions with the assistance of the Court-arranged interpreter.
Then, with the assistance of the interpreter, the Applicant was invited to elaborate on the grounds in her application and explain why the Tribunal was in error. She was also afforded the opportunity to respond to the written and oral submissions of the First Respondent.
When taken to each ground, the Applicant essentially declined to so elaborate or respond other than to express (through the interpreter) her difficulty in putting the words into a sentence. At one point, the Applicant told the Court that she was not prepared because she had contacted a lawyer one week prior to the hearing and got no response. A series of questions were asked in order to understand whether the Applicant sought an adjournment. In response to those questions, the Applicant did not explain why she had not attempted to engage a lawyer sooner (having filed the application in this Court some five years ago) and confirmed that she had not engaged a lawyer and had been advised by a lawyer to make the submissions herself in Court. The Applicant’s submission in this respect was not supported by any evidence and no adjournment request was made. In any event, taking her submission at its highest, I did not see any legitimate basis to adjourn the hearing.
Ultimately, in reply to the First Respondent’s oral submissions, the Applicant submitted to the Court that the suffering she had encountered was all true and particularly in relation to the fact that she is a Christian woman. She said she had nothing further to say in support of her application.
THIS APPLICATION FOR JUDICIAL REVIEW
Grounds of review
By the application filed on 26 February 2018, the Applicant sought relief in the form of an order that the decision of the Tribunal be quashed. She cited the following ten points under the heading “Grounds of application”:
1.I am applying for Judicial Review at Federal circuit court under the s.476 of the Migration Act 1958 related to federal circuit court regulations.
2.The tribunal failed to take relevant legal references which are relevant to my protection claims and the decision taken by Tribunal was legally unreasonable because tribunal failed to assess my protection claims against the present situation in SABAH, Malaysia.
3.The Tribunal erred in failing to find my exceptional circumstances by affirming the review application on my religion because of I am Christian and woman, without looking in to my claims giving the oral decision is a jurisdictional Error.
4.The Information was information of a kind referred to in s.426A (IA) (b ), even though, as the delegate decision, the Tribunal might have arrived at the same conclusion without relying on the effect of the application complimentary protection claims. It was common ground that the Tribunal had not given particulars of the Information to me before affirming not to grant 866 Subclass visa, I believe it is a jurisdictional Error.
5.Procedures requires by law to be observed- In the original application claims not discussed at all. The respondent was required to observe procedures by law and those procedures were not observed. In Malaysia I have faced lot of issues, and also Malaysia is a Muslim dominated country where there is negligence on Christians. Government and all Muslims are behaving like assailants, and there is no justice for SABAH, even If I go there prosecution can happen at the port of entry.
6.The decision by the Respondent involved an error of Law, the error appears on the record of the decision. Particulars "I ( since from child ) had in torture and also there isn't a good symptom for future as well as that I will see no change in Malaysia it will go worse in the future for specially Christians" , according to these factors, both 'Convention' grounds in accordance with Section 36(2)(a) of the Migration Act (the Act), and grounds seeking to establish a real risk of significant harm with reference to Section 36(2)(aa) of the Act have not been applied on applicant.’
7.Delegate did not explicitly inquire whether the Applicant specifically claimed complementary protection in light of cl.866.211 (4) of Sch 2 to the Regulations. In same manner tribunal did not exercise, tribunal has just taken an oral decision on hearing date is unjust.
8.I am genuine protection visa person from Malaysia, that I would be persecuted in Malaysia on the basis of my Dusun ethnicity, religion (Christian) and involvement in the 'Sabah Sarawak Union- United Kingdom (SSU-UK)' movement.
9.I am claiming that human rights have been violated and oppressed in Malaysia in breach of legislation, and Muslim groups have become dominant both in demographic and political terms.
10.I hope Federal circuit court will understand my situation and kindly accept my review application.
(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) 211 CLR 476, [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 her application for a protection visa on 15 March 2017, at which time the applicable legislation was the Migration Act 1958 (Cth) Act No. 62 (commenced 23 February 2017). 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.
CONSIDERATION
1 and 10
Points 1 and 10 of the grounds to the application are, on their face, not expressed as grounds of review and do not allege jurisdictional error. These points are properly read as introductory and conclusory remarks. To the extent that points 1 and 10 were plead as grounds of review, they are dismissed.
2, 3 and 5
Having regard to the Applicant’s affidavit sworn 26 February 2018 and her points of emphasis in oral submissions to the Court at the hearing, it may be accepted (as the First Respondent contended) that points 2, 3 and 5 of the grounds to the application are related. Specifically, they are each directed at the contention that the Tribunal failed to apply the law and was unreasonable because it failed to consider the Applicant’s claims to fear persecution on the basis of her Christianity and as a woman.
The Applicant did not point to any particular part of the Reasons said to constitute the alleged failure to apply the law or to be unreasonable. Nor did the Applicant identify any allegedly illogical or irrational part(s) of the Reasons.
On the face of the Reasons, it is apparent that the Tribunal had regard to the Applicant’s claim to fear harm on account of her Christianity. Notwithstanding that it accepted her Christianity, the Tribunal determined that this claim could not be accepted given the country information detailed in the Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia, 19 July (DFAT Report) which the Tribunal had before it, and which indicated that Christians were free to go about freely worshipping in Malaysia. The Reasons disclose that this country information was put to the Applicant, along with a question about how restriction of the word Allah would impact upon the Applicant, and that the Applicant did not give a meaningful response or any response at all: Reasons, at [19], [28].
To the extent that the Applicant may be understood to have claimed to fear harm as a woman, this was not expressly put to the Tribunal other than to the extent of her claim, made at the Tribunal hearing, that she had been assaulted at a bus stop because she was a woman. The Tribunal did not accept that the Applicant was threatened or assaulted as claimed. When read as a whole, the Tribunal’s Reasons disclose its rejection of these claims were founded on its adverse findings as to the Applicant’s credibility: Reasons, at [18] and [23]-[24].
As was explained to the Applicant at the hearing, this Court is not empowered to conduct its own review of the merit of the Tribunal’s Reasons. The Tribunal was entitled to have regard to the country information before it and to conclude as it did in relation to the Applicant’s claim to fear harm on account of her Christianity. The Tribunal was entitled to reject the Applicant’s claim to certain threats on its assessment of the evidence before it. I do not identify legal unreasonableness in the Reasons, to the standard required, in either respect of either claim.
Accordingly, Grounds 2, 3 and 5 of the application do not succeed.
4
Point 4 of the grounds to the application referred to the Tribunal’s reliance on information in s.426A(1A)(b) of the Act without giving particulars. The cited provision appeared to be in error because it provides for dismissal of proceedings if an applicant does not appear before the Tribunal at the scheduled time and date which did not occur here.
The First Respondent pointed out in their written submissions that it appeared that the intention may have been to plead an error of jurisdiction in the exercise of power pursuant to s.424A and/or s.424AA. Section 424A of the Act imposes an obligation on the Tribunal to put certain information to an applicant where that information may be the reason or form part of the reason for affirming the decision under review. Section 424AA of the Act deals with the discretionary provision of information arising as a consequence of matters arising once the hearing itself has commenced and provides a mandatory regime as to how such information is to be provided: SZMMP v Minister for Immigration and Citizenship [2009] FCA 233. Both ss.424A and 424AA are directed towards ensuring that an applicant is alerted to salient information which has the potential to be influential to the outcome of the case, either prior to the hearing or, when appropriate, during the hearing itself: SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46.
At the hearing before this Court, the Applicant did not accept the invitation to correct the pleading to refer to s.424A and/or s.424AA of the Act.
Section 426A(1A)(b) could not have been and was not applied. The Tribunal’s decision reflects that the Applicant attended the Tribunal hearing and her case was not dismissed for non-appearance. To the extent this ground 4 relied on s.426A(1A)(b), I discern no application to the Reasons and no jurisdictional error.
Section 424AA appeared most apt because the Applicant was invited to appear before the Tribunal pursuant to s.425 of the Act and, during the hearing, was given particulars of a reason that formed part of the Tribunal’s basis for affirming the delegate’s decision (the possible conclusion that her claims were generic and general in nature and could not be specifically applied to her: Reasons, at [16]). I have considered whether there was an error of jurisdiction in this respect. By her response, the Applicant was found (among other things): to admit that her claims were not tailored to her and apply to others in her situation; and to concede that her fears were not personally held: Reasons, at [17]. The Reasons at least purportedly comply with the requirements of s.424AA in that particulars of information found to be a reason for the affirming the decision in this respect were put to the Applicant in a clear way, the Applicant was invited to have a break or come back at a later time but declined and elected to respond immediately, and the Applicant’s limited English skills were taken into account in considering her ability to understand. There is no transcript or other evidence before the Court as to underscore a finding of any jurisdictional error in this respect.
This ground 4 does not establish jurisdictional error.
6, 8 and 9
Each of points 6, 8 and 9 of the grounds of the application sought to re-agitate the Applicant’s claims for protection and fear of persecution.
To the extent that point 6 complained of an error of law in the Reasons, there is no articulation of what that error was or the particular paragraph of the Reasons said to be infected with such error.
As earlier referenced, this Court is not permitted to engage in a review of the merits of the Applicant’s claims. There being no identification of jurisdictional error, these grounds 6, 8 and 9 can not succeed.
7
Point 7 of the grounds of the application referred to the “delegate”. To the extent that, by this ground, the Applicant sought review of the delegate’s decision that would go beyond the jurisdiction of this Court because it is not a “primary decision” or a “privative clause decision” that is reviewable as defined by the statute: s.476 of the Act.
If it were understood to be an intended reference to the Tribunal, the Applicant declined the Court’s invitation to amend the pleading. In any event, there is no discernible basis to find that the Tribunal did not consider the complementary protection assessment as alleged. That assessment was expressly made as recorded at paragraphs [28] and [30] of the Reasons, with reference to the earlier findings made.
Otherwise, this point or ground of the claim appeared to contend that the Tribunal had given an oral decision.
The legislation expressly permits the Tribunal to make an oral decision: s.430D. There is no discernible error in this respect.
This ground 7 does 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-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 12 May 2023
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