Bem17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 41

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BEM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 41

File number(s):	MLG 561 of 2017
Judgment of:	JUDGE SYMONS
Date of judgment:	8 February 2022
Catchwords:	MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – whether Tribunal failed to take account of documents or claims – Tribunal comprehensively considered claims and evidence – no jurisdictional error – application dismissed.
Cases cited:	DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Division:	Division 2 General Federal Law
Number of paragraphs:	28
Date of last submission/s:	21 December 2021
Date of hearing:	21 December 2021
Place:	Melbourne
Applicant:	In person
Counsel for the First Respondent:	Ms L Mills
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

MLG 561 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BEM17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE SYMONS
DATE OF ORDER:	8 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.The application filed on 21 March 2017 is dismissed.

3.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6000.

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 AND BACKGROUND

1. By an application filed on 21 March 2017, the applicant seeks judicial review of a decision of the second respondent (“the Tribunal”) made on 3 March 2017.  The Tribunal affirmed a decision of a delegate of the first respondent (“the Minister”) to refuse the applicant a Protection (Class XA) visa (“the visa”).  The Minister opposes the application and contends, generally, that the decision under review is not affected by jurisdictional error.  The Tribunal enters a submitting appearance and has not participated in the proceeding.

2. The applicant is a citizen of Malaysia who arrived in Australia on 12 November 2013 on an electronic travel visa and lodged an application for the visa on 11 September 2014.

3. In Part C of the application, the applicant identified her reasons for claiming protection in the following terms and responsive to the questions posed in the visa application form.

   Why did you leave that country?

   I left my country because I was being threatened by my exhusband [sic].  After divorce, he was violent to me and my son.  I was under his threats and harassment, so I had to leave Malaysia to escape from his control.

   Have you experienced harm in that country?

   My exhusband [sic] came to find me and used a brick to hit me in front of my son.  He will always come to my house and verbally abuse me.  He also tried to take away all my valuable properties, like fridge, washing machines.  I can’t live a peace and safe life under his threats.

   What do you fear may happen if you go back to that country?

   If I go back to that country, I fear that my exhusband [sic] would find me and harass me again.  He will also harm me.  My life will not be normal if I go back to live under his constant harassment.  I can’t stand both emotionally and physically because of his harms.

   Who do you think may harm/mistreat you if you go back?

   My exhusband [sic].

   Why do you think this will happen to you if you go back?

   I knew my exhusband’s [sic] habit and he will not give up finding me and always harass me.  I also heard my neighbour told me that he was still out there looking for me.

   Do you think the authorities of that country can and will protect you if you go back?

   The local authorities and the police always consider my case as family disputes.  They will not take it seriously so they will do nothing to protect me.

4. On 6 October 2014, the (then) Department of Immigration and Border Protection acknowledged that the visa application was valid and invited the applicant to make contact within seven days should she wish to discuss her claims by interview.  The applicant did not request an interview and on 13 February 2015, the delegate made a decision to refuse the applicant the visa.   The essential reason for that decision was that the delegate did not accept that the applicant had experienced harm or threats in Malaysia and did not accept that the authorities across the whole of Malaysia would fail to provide the applicant with protection.

5. On 2 March 2015, the applicant sought merits review of the delegate’s decision by the Tribunal.  On 1 March 2017, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Mandarin language.  The applicant provided four documents to the Tribunal at the hearing which are reproduced at CB 77-80 and comprise:

   (a)A letter from Dr Tan Wah San concerning the applicant’s health dated 22 January 2017;

   (b)A letter from Parish Priest, Rev Fr. Michel Mannayagam dated 25 February 2017 concerning the applicant’s son and his residence at an orphanage from 2008 to 2012;

   (c)A letter from Ms Tee Chui Yong concerning “family issues” affecting the applicant’s son;

   (d)An untranslated police report dated 19 April 1997.

6. On 3 March 2017, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa.

   THE DECISION OF THE TRIBUNAL

7. The Tribunal identified a summary of the applicant’s claims by reference to the detail provided in Part C of the visa application ([12] CB 85).  The Tribunal noted that during the hearing, the applicant had provided some further detail about her claims which had included ([14]-[22] CB 85-86):

   (a)She had owned a home in Johor Bahru but had not lived there for many years because she was too scared of her husband;

   (b)Many years ago, the applicant’s husband had hit her thumb with a stone.  The applicant showed the Tribunal the injury;

   (c)The applicant had travelled to Australia previously in January 2009.  Although her visa was valid for a stay of three months, she stayed for eleven months because she was too scared to return to Malaysia.  The applicant returned to Malaysia when it appeared that Department officers were going to raid the farm where she was working and “arrest” people;

   (d)The applicant had tried to hide her son from the ex-husband’s behaviour of returning to the house and throwing stones by sending him away to a church orphanage in Malacca.

   (e)The applicant was robbed in April 1997 and on the same day of the robbery, the ex-husband came asking for money;

   (f)The applicant had consulted a doctor for anxiety in April 2007;

   (g)The ex-husband drank alcohol and had been seen by the applicant’s neighbours “wandering about” on his electric bicycle;

   (h)After the applicant and the ex-husband had divorced (this occurring in September 1999), the ex-husband had taken the applicant’s washing machine and fridge;

   (i)Once in the past, the applicant had told a passing police patrol car that her ex-husband came to her house and threw stones.  However, the police had left without doing anything.

8. The Tribunal noted that it had discussed with the applicant country information regarding the Royal Malaysian Police, human rights bodies and government and non-government support for domestic violence victims ([26] CB 87).

9. Under the heading “Assessment of claims” the Tribunal made findings directed at the applicant’s claims that she had suffered harassment and violence at the hands of her husband/ex-husband and that upon any return to Malaysia, he would find her and again harass and act violently towards her.  The Tribunal largely accepted the applicant’s evidence.  In particular, the Tribunal accepted that the applicant was in an abusive marriage and was harassed and on occasions hit by her husband, including with a brick and with a stone (resulting in injury to the applicant’s hand) and that this harassment continued after the applicant divorced the husband in 1999 ([32] CB 88).  The Tribunal also accepted that the applicant had placed her son in an orphanage when he was about 13 years of age and had regard to the letter from the Parish Priest (referred to at [5(b)] above) ([33] CB 88).

10. The Tribunal noted that it was implied in the applicant’s response to a question about why she had not gone to the police when her husband/ex-husband hit her, that the police response might have been different if she was ethnic Malay (rather than of Chinese ethnicity).  The Tribunal referred to country information (identified as a DFAT Country Report for Malaysia) which spoke to the efficacy and integrity of the Royal Malaysian Police and measures in Malaysia to respond to and redress domestic violence ([35]-[36] CB 88-89).

11. The Tribunal recorded that it had queried the applicant about her experiences from 2010 until November 2013 (this being the period of the applicant’s return to Malaysia) but found the applicant’s evidence vague in relation to how she managed to avoid her ex-husband over the period of more than three years if he was still actively looking for her.  Despite these doubts, the Tribunal accepted that the applicant was concerned that she might encounter her husband again and be harassed by him if she returned to Malaysia ([38]-[39] CB 89-90).

12. The Tribunal found, based on the country information which it had earlier referred to, that the applicant could obtain support from domestic violence services available in Malaysia and assistance from the Royal Malaysian Police if required.  The Tribunal did not accept that the applicant could not obtain protection from the police if harassed or threatened by her ex-husband, because she was not ethnic Malay.  The Tribunal also considered that the particular circumstances of the applicant’s past interactions with the Royal Malaysian Police did not indicate an unwillingness on the part of the Royal Malaysian Police to assist the applicant ([40] CB 90).  The Tribunal found that, given the available police protection and domestic violence support services, there was not a real chance that the applicant would suffer persecution amounting to serious harm from her ex-husband if she returned to Malaysia now or in the reasonably foreseeable future ([41] CB 90).

13. For the same reasons, the Tribunal concluded that there was not a real risk that the applicant would suffer significant harm from her ex-husband or anyone else if she was to return to Malaysia ([45] CB 91).

    PROCEEDINGS IN THIS COURT

14. The application for judicial review filed on 21 March 2017 contains the following (unparticularised) grounds.

    1.I have evidence of the police record and the doctor.

    2.I have evidence from the Catholic Church proving that I am single with my son in orphanage. 

    3.I was robbed in 1997 by the people hired by my ex-husband and he drove the motor bike to chase me and he took away the washing machine and fridge.

    4.I was hurt by him even now my hand was [sic] not recovered yet.

    5.One time, I tried to ask help from the police but the police just passed by and didn’t help me.

    6.AAT said I could get protection from the government and the police and said there is a law in place.  But this is all for protection of Malay people and I am not Malay the government won’t help me.

    7.I have reason to be afraid of going back and I couldn’t sleep at night, I have doctor to prove that.

15. On 27 September 2017, a Registrar of this Court made orders to progress this matter to final hearing.  These orders included that the applicant, at least 28 days before the hearing, file and serve any amended application with proper particulars of the grounds of the application, any supplementary court book and written submissions.  The applicant did not file any material responsive to these orders.

16. On 3 December 2021, the Minister filed written submissions dealing with the pleaded grounds of review.  I am satisfied, having regard to an affidavit of service filed by the Minister on 10 December 2021, that on 3 December 2021, the Minister served on the applicant a copy of its written submissions by sending them to the email address nominated by the applicant as her “address for service” in the application filed in this Court.  The same email address has been used consistently by the Court to correspond with the applicant during the course of the proceeding, including to send to the applicant the link to join the Teams meeting for the substantive hearing.

17. The matter came before me for final hearing on 21 December 2021.

18. On that day, the applicant appeared unrepresented and with an interpreter in the Mandarin language.  The Minister was represented by Ms Mills of counsel.

19. In accordance with the practice recommended by cases such as DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9], at the commencement of the hearing I invited the applicant to tell me what it was that she would like to say, in support of her application, to the effect that the Tribunal was wrong in its decision to affirm the decision of the delegate to refuse her the visa.

20. The applicant candidly told the Court that she was not able to say how the decision of the Tribunal was wrong but requested that the Court give her more time in Australia.

21. In oral submissions, at my request, the Minister’s counsel identified comprehensively (but succinctly) the arguments that had been articulated in the Minister’s written submissions as to why the decision of the Tribunal was not affected by jurisdictional error.

22. The Minister made the overarching submission that the applicant’s grounds of review in effect sought to repeat claims that had been made and determined by the Tribunal and that the applicant invited the Court to engage in impermissible merits review.

23. To the extent that the grounds accommodated an assertion that the Tribunal had failed to take the various matters identified in each of them into account, the Minister submitted that the grounds must fail.  This was because:

    (a)In relation to the matters identified in grounds 1 and 3 – the Tribunal noted that the applicant indicated that the untranslated police record was in relation to the incident whereby the applicant was robbed in April 1997 ([[18] CB 86).  The Tribunal accepted that this robbery occurred, but that it was nearly 20 years ago ([34] CB 88) and this did not indicate that the Royal Malaysian Police were unwilling to assist the applicant ([40] CB 90).  The Tribunal also accepted that after they were divorced, the applicant’s ex-husband took possessions of value such as the washing machine and the refrigerator ([32] CB 88).  To the extent that the applicant’s ground 3 contains an assertion that the 1997 robbery was carried out by people hired by the applicant’s ex-husband or that the ex-husband chased the applicant on a motorbike, no error could arise from the failure of the Tribunal to consider the claim in these terms as it had not been articulated in this manner before the Tribunal (citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263, [61]).

    (b)In relation to the matters identified in ground 2 – the Tribunal considered the letter from the Parish Priest and accepted that the applicant had had raised her son single handedly, save for the period she placed her son in an orphanage ([33] CB 88).

    (c)In relation to the matters identified in ground 4 – the Tribunal accepted that in the past the applicant’s ex-husband had hit her, including with a brick and with a stone, injuring her hand ([32] CB 88)

    (d)In relation to the matters identified in ground 5 – the Tribunal considered the applicant’s evidence that in the past she had told a passing police patrol car that her ex-husband came to her house and threw stones but he had left and they did not do anything ([22] CB 86) and the applicant’s claims that the police would not take her concerns seriously and would not protect her ([31] CB 87).  The Tribunal considered country information ([36] CB 88) and found that the applicant could obtain assistance from the Royal Malaysian Police if required and did not accept that there was any evidence that the applicant was or would be denied police protection ([40]-[41] CB 90).

    (e)In relation to the matters identified in ground 6 – the Tribunal considered the applicant’s claim that the police did not assist her and that it might have been because she was not ethnic Malay ([25] CB 87, [35] CB 88).  Having considered country information, the Tribunal did not accept that the applicant could not obtain protection from the police because she was not ethnic Malay ([40]-[41] CB 90).

    (f)In relation to the matters identified in ground 7 – the Tribunal considered the doctor’s note indicated that the applicant had consulted with him for anxiety in April 2007 and that she reported having difficulty sleeping for two weeks ([19] CB 86, [34] CB 88).  Having considered the applicant’s evidence regarding her past experiences and the available country information, the Tribunal found that there were available police protection and domestic violence support services and there was not a real chance that the applicant would suffer persecution amounting to serious harm from her ex-husband if she returned to Malaysia ([41] CB 90).

    CONSIDERATION

24. In order to be entitled to relief by this Court, the applicant must establish that the Tribunal decision is affected by jurisdictional error.  The Tribunal will have made a jurisdictional error if it “exceeded the limits of the decision-making authority conferred by the statute in making the decision”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 at [29].

25. To amount to a jurisdictional error, an error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45].

26. The applicant in this case has not clearly articulated any jurisdictional error in her written application to the Court and neither was the applicant in a position to do so when invited to make submissions orally at the final hearing.  The central narrative that emerges from the applicant’s grounds of review is the concern that notwithstanding she produced documentary evidence to the Tribunal, it did not accept her claim to apprehend harm from her ex-husband upon any return to Malaysia. 

27. However, it is apparent from the Tribunal’s written statement of reasons that its pathway to rejecting the applicant’s claim of future harm involved a correct and complete understanding of the applicant’s claims (including in their expanded articulation at the Tribunal hearing), an appreciation and consideration of the applicant’s evidence (including each of the documents identified at [5] above), and an identification (for the benefit of the applicant) of the “issues arising in relation to the review”. The decision of the Tribunal turned ultimately on its application of country information, the nature of which was identified and discussed with the applicant at the Tribunal hearing (refer [36] CB 88-89) and about which the applicant provided a response (refer [37] CB 89). This response was considered (but rejected) by the Tribunal (refer [40] CB 90).

    DISMISSAL

1. In these circumstances, I am unable to discern legal error in the decision of the Tribunal and accordingly, the applicant’s application filed 21 March 2017 will be dismissed with costs fixed in the sum of $6,000.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.

Associate:

Dated:       8 February 2022