AWT23 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 768
•27 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWT23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 768
File number: PEG 480 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 27 May 2025 Catchwords: MIGRATION – application for juridical review of a decision of the Administrative Review Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal failed to have regard to relevant considerations – whether the Tribunal decision was affected by bias – whether the Tribunal failed to consider the risk of harm the applicant would face on his return to the receiving country – whether the Tribunal made jurisdictional errors in making adverse credibility findings – no jurisdictional error established – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Sch 16 items 1, 24
Administrative Review Tribunal Act 2024 (Cth) s 55
Migration Act 1958 (Cth) ss 5J, 36, 336P, 357A, 359A, 425, 476, 477
Cases cited: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20; [2000] FCA 1265
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 98 Date of last submissions: 19 May 2025 Date of hearing: 15 May 2025; 19 May 2025 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 480 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWT23
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
27 MAY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
The applicant is a Moroccan citizen who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Review Tribunal (Tribunal) affirmed the delegate’s decision. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant has asserted in his application, written submissions and oral submissions that the Tribunal made a number of jurisdictional errors, including that the Tribunal failed to afford him procedural fairness and that the Tribunal failed to have regard to relevant considerations.
For the reasons explained below, the applicant has not established that the Tribunal made any jurisdictional error. His judicial review application to this Court is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant entered Australia in December 2015 as the holder of a student visa.
On 9 December 2022 the applicant applied for a protection visa. The applicant claimed to fear harm from his family for refusing to marry his relative and claimed that if he were to return to Morocco he would be harmed and possibly killed by them.
On 16 January 2023 a delegate of the Minister refused to grant the applicant a protection visa. On the same day the applicant applied to the Administrative Appeals Tribunal (AAT) for merits review of the delegate’s decision.
On 7 March 2023 the AAT affirmed the delegate’s decision not to grant the applicant a protection visa. The applicant sought judicial review of that decision and on 29 April 2024 a Judge of this Court made an Order quashing AAT’s purported decision and remitting the matter to the AAT for reconsideration.
On 5 November 2024, upon reconsideration, the Tribunal affirmed the decision not to grant the applicant a protection visa and it is this decision which is the subject of the current proceeding.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal confirmed, for the avoidance of doubt, that it proceeded on the basis that the applicant applied for a Permanent (Class XA) (subclass 866) visa, in circumstances where the delegate and the AAT in its purported decision of 7 March 2023 incorrectly proceeded on the basis that the applicant applied for a Safe Haven Enterprise visa.
The Tribunal accepted that the applicant was a citizen of Morocco and that Morocco was the receiving country for the purposes of the review.
The Tribunal was concerned about the credibility of the applicant’s claims and evidence and concluded that his claims and evidence about the harm he claimed to fear were not credible.
In reaching this conclusion, the Tribunal placed weight on what it considered to be a significant and insufficiently explained delay in applying for a protection visa, which was compounded by the applicant having spent a not insignificant period on a voluntary removal pathway to Morocco. The Tribunal also placed weight on its conclusion that the applicant’s evidence about the past harm he claimed to have experienced was vague, unconvincing, lacking in detail and did not present as a narrative that involved a lived experience.
In relation to the delay in applying for a protection visa, the Tribunal noted the applicant’s visa history in Australia, including that:
(a)he claimed to have fled to Australia on a student visa after being liberated by his mother, but ceased to have sufficient funds to continue his studies after only one term. Rather than applying for an alternative visa, the applicant knowingly overstayed his existing visa and relocated interstate to a place where he understood he would be paid cash;
(b)he was detained as an unlawful noncitizen in 2018, but rather than applying for a protection visa or any other visa, he escaped from immigration detention and returned to Western Australia; and
(c)the applicant was remanded in custody in relation to a criminal matter for around eight months in 2018-2019 and did not apply for a protection visa whilst in custody, instead signing a voluntary request to be removed from Australia.
The Tribunal recorded that it raised its concerns with the applicant regarding the applicant’s failure to apply for a protection visa for around seven years after he arrived in Australia. The applicant responded that the Tribunal’s concerns made good sense and that he did not know what he could apply for. The Tribunal acknowledged that the applicant did not have legal representation or knowledge of the Australian migration system and accepted that this offered some explanation, but the explanation was insufficient in the circumstances of the case. Even after the applicant escaped immigration detention, he did nothing to explore his visa options.
In relation to the voluntary request for removal, the Tribunal noted the applicant’s evidence that he signed a voluntary request to be removed from Australia whilst in custody and that he withdrew his request after long delays in the Department arranging for his removal. While there was some discrepancy as to when the removal request was withdrawn, the Tribunal considered that nothing turned on this. If the request was withdrawn earlier than 2021, the applicant’s delay in applying for protection would have been longer. If the request had been withdrawn at a later time, then the period the applicant was prepared to return to Morocco voluntarily would have been longer. The Tribunal observed that both conclusions undermined the credibility of the applicant’s claim to fear harm. The Tribunal referred to the applicant’s evidence regarding an unsuccessful attempt by the Department to remove him in August 2022 and observed that notwithstanding the failed attempt to return the applicant to Morocco in late August 2022, the applicant still did not apply for a protection visa until December 2022.
The Tribunal recorded that it raised concerns with the applicant that his evidence about what occurred to him in Morocco was vague and lacking in detail. The applicant responded that he had no evidence and attributed this to his lack of contact with his family, lack of legal representation and knowledge. Whilst the Tribunal acknowledged that the applicant might have been unfamiliar with the visa process in Australia and did not have legal representation, the Tribunal observed that the applicant gave no evidence that he made any real attempt to meaningfully explore his options for a visa, even after having been detained. The Tribunal further considered that even if the applicant had no objective or corroborating evidence, it did not satisfactorily explain why the evidence of his past experiences were vague, lacking in detail and did not appear to involve the applicant recalling a past lived experience.
In addressing the applicant’s claims, the Tribunal was not satisfied that:
(a)the applicant was being forced to marry a relative or that his father was angry or disagreed with his refusal to do so;
(b)the applicant was harmed by his father or any other family member in any way;
(c)the applicant was beaten or harmed with a knife or otherwise or the scars he claims to have resulted;
(d)the applicant was locked in a room for a year or any period; and
(e)if the applicant were to return to Morocco, his father or his family would become aware of that fact due to any association with the government.
In light of those findings, the Tribunal was not satisfied there was any real chance, now or in the reasonably foreseeable future that the applicant would be harmed in any way by his father, his father’s family, or for any of the reasons claimed if he returned to Morocco.
Although the applicant did not claim to fear harm on account of his criminal convictions, the Tribunal considered such a claim and was not satisfied the applicant would face a real a chance of harm now or in the reasonably foreseeable future on that basis if he returned to Morocco.
The Tribunal found the applicant did not satisfy the refugee criterion in s 36(2)(a) of the Migration Act and, based on the same findings of fact, found that the applicant did not satisfy the complementary protection criterion in s 36(2)(aa).
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 6 December 2024. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant raises four grounds in his application (reproduced without alteration):
1.Continued Judicial Scrutiny and Alleged Tribunal Overreach: The ART’s decision raises concerns regarding procedural fairness and potential jurisdictional overreach.
2. Tribunal Exploitation and Dereliction of Duty: A Case of Misguided Political Expediency: The Tribunal ignored crucial facts about my testimony against my father.
3. The Tribunal, in a display of overzealous political self-preservation, prioritized the safeguarding of its integrity and ideologies over the paramount consideration of my safety, thereby abdicating her duty to impartially adjudicate the matter at hand.
4. The applicant is confronted with the imminent peril of being subjected to potential torture by the state since my father was a powerful police executive.
Pursuant to an Order made by a Registrar of this Court on 14 January 2025, the applicant was to file and serve 28 days before the hearing written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence upon which the applicant seeks to rely. Although the applicant did not file any documents within the time frames specified in the Order, he did file an affidavit and written submissions on 6 May 2025 (nine days before the hearing listed on 15 May 2025). I have had regard to these documents. The Minister filed two outlines of written submission ahead of the hearing. The first was filed in accordance with the Registrar’s Order and addressed the grounds in the application. The second was filed after the applicant filed his submissions and affidavit on 6 May 2025 and responded to the issues raised in those documents.
For reasons explained below, the hearing before the Court on 15 May 2025 was adjourned part heard and resumed on 19 May 2025. The applicant provided to the Court a further affidavit and a further outline of written submissions on 19 May 2025. These were received by the Court without objection from the Minister and I have had regard to those documents.
The evidence before the Court comprises:
(a)the court book filed on behalf of the Minister on 28 January 2025;
(b)affidavits of the applicant filed on 28 November 2024, 6 May 2025 and 19 May 2025; and
(c)affidavits of service of Tareena Martin filed on 30 April 2025 and Aatika Ismailjee filed on 13 May 2025, both filed on behalf of the Minister.
Preliminary issues arising at the hearing on 15 May 2025
The application came before the Court for final hearing on 15 May 2025. There were two preliminary issues raised at the hearing.
Request for an adjournment
At the commencement of the hearing, the applicant made an oral application for an adjournment of the hearing to enable him to seek legal representation. I heard submissions from both parties and declined to grant the adjournment. My reasons for this decision were delivered orally at the hearing.
After refusing to grant the adjournment, I explained to the applicant the role of the Court in judicial review proceedings and gave examples of types of jurisdictional errors that often arise in migration cases. The applicant confirmed that he understood the explanations given by the Court. I then stood the matter down for approximately one hour to give the applicant an opportunity to consider what he wished to say to the Court in his oral submissions.
During the course of the applicant’s oral submissions, an issue arose in relation to the interpretation services available to assist the applicant at the hearing (see below). As discussed below, as a consequence of the interpretation issues that arose, I adjourned the hearing part heard. The affidavit filed by the applicant on the day the hearing resumed addressed the attempts that he had made to obtain legal representation. When I asked the applicant at the hearing on 19 May 2025 the purpose of the affidavit, the applicant confirmed that it was provided for completeness in circumstances where the Court had observed on the previous occasion that there was no evidence of the attempts the applicant had made to obtain a lawyer.
In my oral reasons for refusing to grant the adjournment, delivered on 15 May 2025, I indicated that there was no evidence from the applicant about the steps he had taken to obtain a lawyer but I nevertheless had regard to the matters that he raised in oral submissions, which included his attempts to obtain a lawyer. Upon the applicant filing the affidavit, there was no further application for an adjournment to obtain legal representation and the content of the affidavit, had it been before the Court on 15 May 2025, would not have changed the decision I made on that day in respect of the adjournment application.
Interpretation
The applicant indicated in his application to the Court, as well as in his protection visa application, that he did not require an interpreter. The applicant appeared at the hearing before the Tribunal without the assistance of an interpreter. The applicant then deposed in his affidavit filed on 6 May 2025:
I have repeatedly requested the assistance of a Moroccan Arabic interpreter in my dealings with the Department. My requests have been denied on the grounds that I have “sufficient English.” However, my ability to understand complex legal processes is limited, and this denial significantly impaired my capacity to present my case clearly.
When this came to my attention the day prior to the hearing, my associates emailed the applicant to confirm whether the applicant required an interpreter for the hearing. Despite receiving no response to this email, and despite the applicant not responding to a previous email from my associates inviting him to advise the Court if he required an interpreter, the Court took steps to arrange an interpreter for the hearing. The Court was able to arrange an Arabic interpreter to assist the applicant, but not a Moroccan Arabic interpreter. At the start of the hearing, both the applicant and the interpreter confirmed that they were able to understand each other, albeit there may at time be a need to seek clarification, and the applicant confirmed that he was content for the interpreter to assist him.
Throughout the hearing on 15 May 2025, in accordance with the applicant’s preference, the applicant communicated sometimes in English, seeking assistance from the interpreter from time to time as required, and sometimes in Arabic. When it came time for the applicant to make his oral submissions to the Court about his judicial review application, there were lengthy exchanges and clarification between the applicant and the interpreter. I sought clarification as to whether the applicant and interpreter were able to understand each other clearly. The applicant indicated that he could understand everything the interpreter was saying and she was accurately interpreting everything he was saying. However, the applicant expressed concern that he was unable to express himself freely because he was not able to use his Moroccan Arabic dialect, which is a different language from the Arabic language used by the interpreter. When I invited the applicant to attempt to speak Moroccan Arabic to the interpreter to see whether she could understand, the interpreter indicated she could not understand Moroccan Arabic.
In these circumstances, I adjourned the hearing part heard and listed it for the first available date thereafter where a Moroccan Arabic interpreter could be arranged. The hearing resumed on 19 May 2025 with the applicant being assisted by a Moroccan Arabic interpreter. I indicated to the applicant that I would have regard to all the submissions he made at the hearing on 15 May 2025 and I gave him a further opportunity on 19 May 2025 to make any further oral submissions that he wished to make about why he believes the Tribunal made a jurisdictional error. The applicant again largely participated in the hearing in English, and without requiring anything said by the Court or the Minister’s lawyer to be interpreted, primarily using the assistance of the interpreter when he made his oral submissions to the Court. At the conclusion of the hearing on 19 May 2025 the applicant confirmed that he had been able to express himself freely with the Moroccan Arabic interpreter.
CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
The issues raised in the applicant’s grounds, affidavit and submissions
While there is some overlap in the issues raised in the applicant’s application, written submissions and affidavits, the submissions and affidavits do not necessarily directly address the grounds in the application. It is therefore convenient to address the issues raised by the applicant thematically, rather than by reference to the grounds in his application. The issues raised in the applicant’s application, submissions and affidavits are:
(a)whether the Tribunal denied the applicant procedural fairness, including by proceeding to hear the matter when the applicant did not have an interpreter or a legal representative to assist him;[1]
(b)whether the Tribunal failed to have regard to relevant considerations;[2]
(c)whether the Tribunal decision was affected by bias;[3]
(d)whether the Tribunal failed to consider the risk of harm that the applicant would face on return to Morocco;[4]
(e)whether the Tribunal misapplied the relevant legal standards or otherwise erred in assessing the applicant’s credibility and the consequence of his delay in seeking protection;[5] and
(f)matters relating to the merits of the protection visa application and/or the applicant’s general dissatisfaction with the Tribunal decision and an unsuccessful attempt by the Department to return the applicant to Morocco.[6]
[1] Raised in the applicant’s application (ground 1), the applicant’s submissions filed on 6 May 2025, the applicant’s written submissions filed on 19 May 2025, the applicant’s oral submissions.
[2] Raised in the applicant’s application (ground 2), the applicant’s submissions filed on 6 May 2025, the applicant’s oral submissions.
[3] Raised in the applicant’s application (ground 3), the applicant’s oral submissions.
[4] Raised in the applicant’s submissions filed on 6 May 2025.
[5] Raised in the applicant’s submissions filed on 6 May 2025.
[6] Raised in the applicant’s application (ground 4), the applicant’s oral submissions.
I address these issues in turn.
Whether the Tribunal denied the applicant procedural fairness
The applicant has made general assertions that he was denied procedural fairness and also raised more specific matters that he asserts amount to a denial of procedural fairness and jurisdictional error.
The Tribunal’s obligation to afford the applicant a fair hearing
The applicant’s claim that the Tribunal denied him procedural fairness by not providing him with an interpreter, as well as his claim that the Tribunal denied him procedural fairness by proceeding in circumstances where he did not have a legal representative, both relate to the Tribunal’s obligation to afford the applicant a fair hearing.
Relevantly in this matter, the AAT on 25 September 2024 invited the applicant to appear before the Tribunal at a hearing on 1 November 2024 to give evidence and present arguments relating to the issues arising in relation to the decision under review. This invitation was issued pursuant to s 425 of the Migration Act as it applied at the time of the invitation. It is well-established that an invitation to attend a hearing issued under s 425 of the Migration Act must be a real and meaningful one and the hearing must be conducted in a fair manner: see Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759 at [31]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [41].
With effect from 14 October 2024, after the hearing invitation had been sent but before the Tribunal hearing was held, the AAT was abolished, the Tribunal was established and significant amendments to the Migration Act took effect. As noted by the Tribunal in its reasons, the transitional provisions that applied pursuant to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Consequential and Transitional Provisions Act) had the effect that:
(a)the Tribunal was required, as far as possible, to continue the proceeding under the new law[7], while ensuring that the proceeding was continued and finalised by the Tribunal in a manner that the Tribunal considered to be fair and efficient: Consequential and Transitional Provisions Act, Sch 16, item 24(2), (4);
(b)anything done in, or in relation to, the proceeding before the transition time[8] continues to have effect for the purposes of, or in relation to, the proceeding after the transition time: Consequential and Transitional Provisions Act, Sch 16, item 24(6);
(c)anything done in, or in relation to, the proceeding before the transition time that was valid under, or done in accordance with, the old law is taken to be valid under, or to have been done in accordance with, the new law for the purposes of the proceeding after the transition time: Consequential and Transitional Provisions Act, Sch 16, item 24(7); and
(d)anything done in, or in relation to, the proceeding before the transition time by the AAT is taken, after that time, to have been done by the Tribunal: Consequential and Transitional Provisions Act, Sch 16, item 24(8).
[7] ‘New law’ is defined in Sch 16, item 1 of the Consequential and Transitional Provisions Act to mean the law of the Commonwealth as in force from time to time after the commencement of the Administrative Review Tribunal Act 2024 (Cth) and, relevantly, includes the Migration Act as amended in October 2024.
[8] ‘Transition time’ is defined in Sch 16, item 1 of the Consequential and Transitional Provisions Act to mean the time the Administrative Review Tribunal Act 2024 (Cth) commences.
Under the Migration Act, as amended, the review was to be conducted under Part 5. There is no longer an equivalent provision in the Migration Act to the previous s 425. Pursuant to s 336P(1) of the Migration Act as in force at the date of the Tribunal hearing, the Administrative Review Tribunal Act 2024 (Cth) (ART Act) applies in relation to a review by the ART of reviewable migration decisions and reviewable protection decisions, unless Part 5 of the Migration Act expressly provides otherwise. That section is expressed to be subject to s 357A of the Migration Act, which provides an exhaustive statement of the natural justice hearing rule.
Section 55(1) of the ART Act applied in part in this matter and relevantly provides:[9]
The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:
(a) present the party’s case; and
(b) …
(c) make submissions and adduce evidence.
[9] Subsection 55(1)(b) of the ART Act does not apply in relation to a review of a reviewable migration decision or a reviewable protection decision: see s 357A(2B) of the Migration Act. It has therefore not been reproduced in this judgment.
I note for completeness that, if there are any inconsistency between s 55 of the ART Act and certain identified provisions of the Migration Act, the identified provisions of the Migration Act will prevail: see s 357A(2A) of the Migration Act. I do not identify any such inconsistency that would be relevant to the issues to be determined by the Court in this matter.
Claimed denial of procedural fairness based on the applicant not being provided with an interpreter at the hearing
The applicant submitted in his written submissions of 19 May 2025 that he is of Moroccan origin with limited English proficiency and that he explicitly requested the assistance of a Moroccan Arabic interpreter to comprehend and participate effectively in the proceedings. The applicant submitted that the failure to provide such assistance constitutes a breach of the natural justice hearing rule and denied him a fair opportunity to present his case. He further submitted that his inability to understand the proceedings due to language barriers, coupled with the lack of legal representation, led to a situation where relevant materials and arguments were not adequately presented or considered.
The applicant gave evidence in his affidavit filed on 19 May 2025 that:
Due to my limited English proficiency, I have consistently requested the assistance of a Moroccan Arabic interpreter to ensure I fully understand the legal proceedings and can effectively communicate my case.
The applicant also referred to requests for an interpreter in his affidavit of 6 May 2025, which is extracted at [31] above.
The focus of this aspect of the applicant’s ground is appropriately directed to the proceeding before the Tribunal, rather than the applicant’s interactions with the Department or the Court. That is because the Court can only grant relief to the applicant if he establishes jurisdictional error in the Tribunal decision.
I accept that the applicant participated in the Tribunal hearing on 1 November 2024 without the assistance of an interpreter. There is nothing in the hearing record from that hearing, or other evidence in the court book to suggest that an interpreter was present at the hearing.
I also accept that a failure on the part of the Tribunal to provide an interpreter to an applicant who lacks the requisite English language skills to meaningfully participate in a hearing before the Tribunal without an interpreter may amount to a breach of the former s 425 of the Migration Act or a breach of s 55 of the ART Act. However, I do not accept that there was any such denial of procedural fairness in this case for two reasons.
First, the applicant has not established that he requested an interpreter before the Tribunal, despite the Tribunal inviting him to advise it if he required an interpreter.
The applicant’s assertion and evidence to the Court that he consistently requested the assistance of a Moroccan Arabic interpreter is not borne out by reference to the documentary evidence before the Court. In this regard, I note that:
(a)in his application for a protection visa, which was before the Tribunal, the applicant indicated that he could speak English and expressly declared that if he was called for an interview, he would not need an interpreter;
(b)in a hearing invitation sent to the applicant on 15 February 2023, the Tribunal invited the applicant, in bold font, to ‘Please advise us at least 7 days before the hearing if you require an interpreter’. There is no evidence before the Court to suggest that the applicant requested an interpreter and the hearing record from the hearing convened by the AAT on 6 March 2023 does not suggest that the applicant had an interpreter at that hearing;
(c)in the purported AAT decision on 7 March 2023, which was subsequently quashed, the AAT recorded at [2] that:
The applicant participated in a video hearing with the Tribunal on 6 March 2023 to give evidence and present arguments. The applicant made clear that he understood English and that he did not require an interpreter
(d)after the AAT decision was quashed and the matter remitted back to the Tribunal, the Tribunal sent a further invitation to attend a hearing to the applicant on 25 September 2024 and again invited the applicant, in bold font, to advise at least seven days before the hearing if he required an interpreter, and there is no evidence to suggest that the applicant requested any interpreter.
Second, the applicant has not established that he was unable to meaningfully participate in the Tribunal hearing without an interpreter. The applicant has not meaningfully explained what matters he was unable to express in English or what further submissions he could have raised with the Tribunal if he had been assisted by an interpreter. At their highest, the applicant’s oral submissions to the Court on this point alleged that the Tribunal’s assessment of the applicant’s credibility was adversely affected by his delay in applying for a protection visa and it was hard to explain this to the Tribunal. The applicant explained to the Court that he previously tried to submit an application for protection but was rejected. It is not clear why the applicant did not raise this with the Tribunal if it is correct and this appears to be contrary to the evidence the applicant did give the Tribunal, including that he did not apply for any visa after he was detained in 2018 (Tribunal’s reasons at [38]), he did not apply for any visa or seek advice about visa options after escaping from immigration detention (Tribunal’s reasons at [38]), he did not apply for a protection visa while in custody (Tribunal’s reasons at [39]) and, when invited to address the Tribunal’s concerns about the delay in applying for a protection visa, the applicant responded that the Tribunal’s concerns made good sense and claimed that he did not know what he could apply for (Tribunal’s reasons at [47]). While the applicant has asserted, in a general sense, that he could not always understand the Tribunal’s questions, he has not provided any evidence that might corroborate this, such as a transcript of the Tribunal hearing which might show that the answers the applicant gave did not correspond to the questions that the Tribunal asked.
The Tribunal in its reasons summarised the evidence that the applicant gave at the hearing. There is nothing in these reasons to suggest that the Tribunal had any concerns about the applicant’s English language skills. Based on the Tribunal’s decision record at [17]-[21], it appears that the applicant gave evidence at the hearing in relation to his family, his schooling, his claim that he was locked in a room by his father for a year and why he continues to fear harm from his family. The applicant also confirmed at the hearing before the Tribunal that he did not raise any other claims for protection and relied solely on the harm he feared from his family. The applicant also responded to concerns put to him by the Tribunal in relation to his credibility. It appears from the summary of the applicant’s evidence in the Tribunal’s reasons that the applicant was able to give evidence in English in relation to his claims for protection and there is nothing to suggest that he was unable to meaningfully participate in the hearing.
I therefore do not accept that the applicant was denied procedural fairness by not being provided an interpreter to assist him at the Tribunal hearing.
Claimed denial of procedural fairness based on the applicant not having legal representation
In his written submissions of 19 May 2025, the applicant submitted that he actively sought legal assistance and the unavailability of such assistance, through no fault of the applicant, further exacerbated the procedural unfairness he experienced. The applicant referred to the High Court’s decision in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 (Dietrich) for the proposition that an unrepresented individual may be unable to receive a fair trial in a serious matter and, while acknowledging that that case related to a criminal law proceeding, submitted that the underlying principle underscored the importance of legal representation in ensuring fairness, especially when the individual lacks the means ability to self-represented effectively.
Contrary to the applicant’s submission, there is no evidence before the Court that he actively sought legal assistance when his matter was before the Tribunal. The evidence before the Court of the applicant’s attempts to secure pro bono legal assistance are set out in his affidavit filed on 19 May 2025 and relate to attempts to secure pro bono legal assistance in December 2024 in relation to the proceeding before this Court.
In any event, irrespective of whether or not the applicant sought pro bono assistance before the Tribunal, his inability to obtain a lawyer did not amount to a denial of procedural fairness. There is no right to a lawyer in civil proceedings, including migration proceedings before the Tribunal, and the principle in Dietrich is confined to criminal proceedings: see Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20; [2000] FCA 1265 at [24], [36]. The Tribunal was not required to arrange a legal representative or other representative for the applicant and was not required to stay or adjourn the proceeding before it simply because the applicant did not have a lawyer.
To the extent that the applicant appears to have made submissions to the Tribunal about the impact not having a lawyer on his ability to present his claims, the Tribunal took this into account. The Tribunal noted at [45] of its reasons that, when it raised its concern with the applicant that his evidence was vague and lacking in detail, the applicant referred, amongst other things, to his lack of legal representation. The Tribunal acknowledged that the applicant might have been unfamiliar with the visa process and did not have legal representation, but noted that that is not uncommon for persons in his situation. The Tribunal also acknowledged at [48] of its reasons that the applicant’s lack of legal representation and knowledge of the Australian migration system might offer some explanation about his delay in applying for a protection visa, but was insufficient in the circumstances of the case. It is apparent from this that the Tribunal was aware that the applicant felt some degree of disadvantage by not having a lawyer and took that into account in assessing his claims.
Procedural fairness issues in relation to the Tribunal’s assessment of the applicant’s credibility
The matters referred to in the applicant’s written submissions of 6 May 2025 which appear under the heading ‘Breach of Procedural Fairness’ relate to the Tribunal’s assessment of the applicant’s credibility and will be addressed in this judgment below, together with the other assertions of jurisdictional error relating to credibility.
Other procedural fairness considerations
The assertion of a denial of procedural fairness in the applicant’s application is simply an assertion that the Tribunal’s decision raises concerns about procedural fairness and potential jurisdictional overreach, without giving any meaningful indication of the matters the applicant relies on in asserting that he was denied procedural fairness.
The Minister in his written submissions addressed some of the Tribunal’s obligations under Part 5 of the Migration Act (and the former Part 7 of the Migration Act). These included the Tribunal’s obligations under the Migration Act, including the requirement to invite the applicant to a hearing, ensure that the applicant is on notice of determinative issues and to put any relevant information to the applicant pursuant to s 359A of the Migration Act.
I have referred above to the Tribunal’s obligation to invite the applicant to a hearing and to ensure that the applicant had a reasonable opportunity to present his case and give evidence and submissions. I have addressed above that I do not consider the Tribunal failed to comply with this obligation because it proceeded without an interpreter and without the applicant having legal assistance. There is nothing else in the materials before the Court that would cause me to consider that the applicant did not have a fair hearing and did not have a reasonable opportunity to present his case or to give evidence and make submissions.
The applicant was on notice of the dispositive issues from the delegate’s decision in this matter. It is apparent from the Tribunal’s reasons that the Tribunal also put to the applicant some of its concerns with the credibility of his evidence and invited him to address these.
I accept the Minister’s submission that there was no information that the Tribunal was required to put to the applicant under s 359A of the Migration Act. Section 359A of the Migration Act requires the Tribunal to give to an applicant, in a way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason for affirming the decision under review, to ensure as far as is reasonably practicable that the applicant understands why it is relevant to the review and the consequences of it being relied upon, and invite the applicant to comment on the information. The obligation in s 359A does not extend to information that is not specifically about the applicant and is just about a class of persons of which the applicant is a member, such as country information, or information that the applicant gave to the Department or the Tribunal for the purposes of the review: Migration Act s 359A(4)(a), (b), (ba). I also accept the Minister’s submission that the Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps, lack of detail in an applicant’s evidence are not ‘information’ for the purposes of s 359A of the Migration Act: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18].
The applicant has not established that he was denied procedural fairness by the Tribunal.
Whether the Tribunal failed to have regard to relevant considerations
The applicant asserted in his application that the Tribunal ignored crucial facts in his testimony against his father, without specifying what those facts were. In his submissions filed on 6 May 2025, the applicant provided more information about this aspect of his claim asserting that the Tribunal failed to engage with the applicant’s claims that:
(a)his father, a high-ranking police official in Morocco, subjected him to prolonged physical abuse and attempted to coerce him into a forced marriage; and
(b)there was systematic inability or unwillingness of Moroccan authorities to provide protection against such familial abuse, particularly where the perpetrator holds a position of power.
In his oral submissions at the hearing on 19 May 2025, the applicant submitted that the Tribunal did not take into consideration the things he was saying, without referring to or identifying any specific matters that he alleges the Tribunal did not take into consideration.
The Tribunal was required to have regard to the claims for protection advanced by the applicant and their component integers, as well as any claims that were not expressly articulated but which clearly emerged on the materials before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58], [60].
Insofar as the applicant asserts that the Tribunal failed to engage with his claims that his father subjected him to prolonged physical abuse and attempted to coerce him into a forced marriage, I accept the Minister’s submission that the Tribunal’s reasons demonstrate that it had regard to, and actively and intellectually engaged with, the applicant’s evidence regarding these claims.
The Tribunal summarised the claims at [18]-[21] of its reasons. The Tribunal considered those claims and rejected them at [35]-[52] of its reasons. The Tribunal was not satisfied that the applicant was being forced to marry a relative or that his father was upset with him because of this, and the Tribunal was not satisfied that the applicant was harmed by his father or any other family member in any way. The Tribunal was not satisfied that the applicant would face a real chance of harm by his father or his father’s family if he returned to Morocco in the future. The Tribunal’s rejection of the applicant’s claims was largely based on its adverse credibility findings in relation to the applicant.
I also accept the Minister’s submission that, having rejected the applicant’s claims about past and future harm from his father and family, it was unnecessary for the Tribunal to expressly address the availability of state protection, and the effectiveness of the authorities, for the purposes of ss 5J(2) or 36(2B) of the Migration Act.
Having regard to the balance of the evidence before the Court, I have not identified any claim that was expressly articulated by the applicant, or which clearly emerged from the materials before the Tribunal, that the Tribunal failed to consider.
Whether the Tribunal decision was affected by bias
The Minister interpreted ground 3 of the application as raising an assertion of bias. That ground asserts that the Tribunal abdicated its duty to impartially adjudicate the matter. There is also one aspect of the applicant’s oral submissions, made at the hearing on 19 May 2025, which may be interpreted as relating to an allegation of bias. That is an assertion that the Tribunal made its decision quickly and a suggestion that it did not take its time to read the case and answer it properly.
Any allegation of bias must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69].
There is nothing in the materials before the Court to raise any suggestion that the Tribunal may have prejudged the matter or approached the review task with a mind that is not open to persuasion. Likewise, there is nothing before the Court that would suggest that a fair-minded and well-informed lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the conduct of the review.
I accept the Minister’s submission that the Tribunal was not required to uncritically accept the applicant’s claims. The Tribunal has given carefully considered reasons for making its adverse credibility findings and for rejecting the applicant’s claims.
The Tribunal hearing in this matter was conducted on 1 November 2024 and the decision was handed down four days later on 5 November 2024. The speed with which the Tribunal delivered its decision does not demonstrate any actual or apprehended bias. As I explained to the applicant at the hearing, where an applicant is in immigration detention, the Tribunal and the Court will often take steps to deliver a decision as quickly as possible. This does not demonstrate any lack of care in assessing the case advanced. The Tribunal’s careful consideration of the applicant’s claims is not undermined by the fact that it made its decision quickly.
The applicant has not established that the Tribunal decision was affected by bias.
Whether the Tribunal failed to consider the risk of harm the applicant would face upon his return to Morocco
In his submissions filed on 6 May 2025, the applicant submitted that the Tribunal failed to adequately assess the risk of harm he would face upon return to Morocco, particularly in light of his father’s position within the police force and the cultural context surrounding familial abuse and forced marriage. This overlaps to a degree with ground 4 of his application, by which he asserts that he will be confronted with the imminent peril of being subjected to potential torture by the state since his father was a powerful police executive.
This assertion of error is not established. The Tribunal carefully considered the applicant’s claims and rejected the applicant’s claims of past harm and his claim that he was being forced to marry. The Tribunal also made clear findings that it did not accept that the applicant would face a real chance of serious harm or a real risk of significant harm upon his return to Morocco. Again, as indicated above, these findings were largely based on the Tribunal’s adverse credibility findings.
To the extent that the applicant, by this assertion, is really expressing his disagreement with the Tribunal decision, that is not of itself sufficient to establish jurisdictional error. As explained to the applicant at the hearing, the Court does not have the power to assess the merit of his protection visa application.
Whether the Tribunal made a jurisdictional error in its assessment of the applicant’s credibility
In his written submissions filed on 6 May 2025, the applicant submitted that the Tribunal denied him procedural fairness because the Tribunal’s assessment of his credibility was adversely influenced by his delay in applying for protection, but the applicant provided explanations for the delay, including his lack of legal knowledge, language barriers and trauma resulting from past abuse. The applicant submitted that the Tribunal was required to give the applicant an opportunity to respond to adverse credibility findings, citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL). The applicant submitted that the Tribunal’s failure to adequately consider the applicant’s explanations and give him an opportunity to address concerns regarding delay constitutes a breach of procedural fairness.
The applicant also submitted in his written submissions filed on 6 May 2025 that the Tribunal applied an incorrect legal standard by placing undue emphasis on the applicant’s delay in seeking protection, thereby undermining his credibility.
The Minister submitted that the applicant’s reliance on SZBEL does not assist him. In that case the High Court held that the Refugee Review Tribunal failed to afford the applicant procedural fairness because he was not put on notice that the determinative issue had changed from what was considered in the delegate’s decision. In the present case, the delegate also referred to the applicant’s delay in making a protection visa application as being a matter of concern. The applicant was invited by letter dated 19 December 2022 to provide additional information in relation to his protection visa application when it was before the Department. The applicant was invited to provide information on a range of issues and was put on notice that the length of time that passed between his arrival in Australia and when he lodged his application for a protection visa is a matter that raises concerns about the genuineness of his protection claims. The applicant was invited to provide comments about why this much time had passed before he lodged his application for a protection visa. The applicant did not respond to this invitation and, in the delegate’s decision record, the delegate referred to the lack of details in the information in the protection visa application and the lack of explanation addressing the delay in making the protection claims as being matters of concern.
The applicant was therefore on notice of dispositive issues from the delegate’s decision. In any event, it appears from the Tribunal’s reasons that the Tribunal invited the applicant to comment on the delay. The Tribunal said at [47] of its reasons:
I also raised concern about the applicant’s failure to apply for a protection visa for around seven years after he arrived in Australia, despite being in immigration detention on two separate occasions for a large part of that period. I raised my concern that a person who had a genuine fear of harm in Morocco might be expected to raise those claims promptly and that not only had the applicant not raised those claims promptly, but he had also requested to be returned to Morocco. I explained that these matters might undermine the credibility of his claims to genuinely fear harm in Morocco. The only response the applicant gave to these matters was that the concerns raised made ‘good sense’ adding that people wanted him to sign a removal request and even though other detainees had offered to assist the applicant and just asked him what he wanted to do, the applicant claimed that he didn’t know what he could apply for.
I do not accept that the applicant was not on notice that the delay in applying for a protection visa and advancing his claims may result in an adverse credibility finding. Further, and as discussed above, to the extent that the applicant made submissions to the Tribunal based on his language barriers and lack of legal representation and knowledge, the Tribunal had regard to those matters in reaching its decision. The Tribunal did not accept that the applicant had past trauma arising from his protection claims.
There is no denial of procedural fairness in relation to the Tribunal’s adverse credibility findings, particularly to the extent that they are based on the delay in making the protection visa application.
I do not accept that the Tribunal has misapplied legal standards by placing undue emphasis on the applicant’s delay in seeking protection. I acknowledge the Minister submission that it is not clear what legal standard the applicant says has been misapplied. I accept the Minister’s submission that the weight to be given to evidence is a matter for the Tribunal as part of its fact-finding function. It was open to the Tribunal in this case to place weight on what it found to be a significant and insufficiently explained delay in applying for protection.
I have also considered the Tribunal’s adverse credibility findings more generally and I am satisfied that these findings were open to the Tribunal on the evidence before it. The Tribunal considered the applicant’s evidence and his explanations about the matters of concern to the Tribunal and had regard to those matters in forming its credibility assessment. I am unable to discern any jurisdictional error in the Tribunal’s assessment of the applicant’s credibility.
Matters relating to the merits of the protection visa application, the applicant’s dissatisfaction with the Tribunal decision and the attempt to return him to Morocco
Several of the matters raised by the applicant in his oral evidence to the Court and his written submissions, as well as ground 4 of the application, relate to the merits of his protection visa application, his dissatisfaction with the Tribunal decision and the failed attempt to return him to Morocco. None of these matters establish jurisdictional error in the Tribunal decision.
The Court does not have any power to decide for itself whether the applicant meets the criteria for a protection visa. Therefore, any submissions the applicant made about why he believes he will face harm upon return to Morocco are not capable of establishing that the Tribunal made a jurisdictional error.
As indicated above, the applicant’s dissatisfaction with the Tribunal decision and disagreement with that decision is not, of itself, sufficient to establish jurisdictional error. I have considered this in conjunction with the other matters raised by the applicant and have not discerned any jurisdictional error.
Finally, the applicant raised at length in his affidavit of 6 May 2025 and in his oral submissions to the Court his dissatisfaction with an attempt by the Department to remove him to Morocco in 2023. The applicant claims that he was forcibly placed on a plane to Morocco by the Minister’s officers and restrained for approximately 100 hours during a traumatic event before the deportation was aborted and he was returned to Australia. The applicant claims that he has made several complaints about the circumstances of this attempted removal, which have not been adequately explained by the Department. It appears from the summary of the applicant’s evidence by the Tribunal that he also raised this issue before the Tribunal.
The applicant’s claims for protection were not based on the attempted removal and the Tribunal was not required to make any findings of fact about the attempted removal. The decision to remove the applicant from Australia is not the subject of the judicial review application before the Court. It is not appropriate for the Court to address this matter and there is no basis for the Court to require the Minister to offer any explanation to the applicant. No jurisdictional error is established based on the applicant’s concerns about his aborted removal.
CONCLUSION
The applicant has not established that the Tribunal made a jurisdictional error in this matter and, having reviewed the matter independently, the Court has not identified any obvious jurisdictional error. The application for judicial review is therefore dismissed.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 27 May 2025
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