Bev18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 325

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BEV18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 325

File number(s):	MLG 615 of 2018
Judgment of:	JUDGE SYMONS
Date of judgment:	18 April 2024
Catchwords:	MIGRATION – protection visa – application for review of decision of the Administrative Appeals Tribunal – where applicant resiled from original protection claims at Tribunal hearing – where applicant introduced new claim to fear reprisal based on membership of the LGBTI community in Malaysia – where applicant questioned about his relationship history – where applicant contends Tribunal erred in asking questions about his relationship and by failing to give him the opportunity to produce further proof of his claims – where judicial review adjourned because applicant indicated he had paid a sum of money for a legal representative who failed to appear at the final hearing – where legal representative appeared at the next return date and orders made to facilitate opportunity to advance further grounds and submissions – where no further material filed – matter determined based on available material and earlier submissions – no jurisdictional error identified – application dismissed with costs
Legislation:	Migration Act 1958 (Cth), s 36(2)
Cases cited:	BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54; (2020) 274 FCR 532
Division:	Division 2 General Federal Law
Number of paragraphs:	48
Date of last submissions:	13 November 2023
Date of hearing:	13 November 2023
Place:	Melbourne
Applicant:	In person
Solicitor for the First Respondent:	Ms Richardson of Sparke Helmore

ORDERS

MLG 615 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BEV18
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE SYMONS
DATE OF ORDER:	18 APRIL 2024

THE COURT ORDERS THAT:

1.The application for judicial review filed on 13 March 2018 be dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount 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 SYMONS:

INTRODUCTION

1. By an application filed on 13 March 2018, the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 12 February 2018, affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Subclass 866) visa (the visa).  The Minister opposes the application.  The Tribunal enters a submitting appearance, save as to costs, and has not participated in the proceeding.

   BACKGROUND

2. The applicant is a citizen of Malaysia who arrived in Australia on 24 September 2016 on an electronic travel visa and lodged an application for the visa on 22 December 2016.

3. In Part C of his visa application (including by reference to an attached written statement), the applicant identified his reasons for claiming protection in the following terms (CB 32-40):

   (a)as a native of North Borneo Sabah, he lived in danger and was exposed to “various criminal issues” caused by illegal immigrants whom the government had allowed to enter from the Philippines, Bangladesh and Indonesia.  The applicant had been attacked several times and robbed by Sulu people from the Philippines.  He made a police report, but no action was taken.

   (b)the Malaysian government was preventing citizens from exercising their human rights pursuant to the Malaysia Agreement 1963. Those that voiced their rights were at risk of being killed or jailed. The applicant assisted in trying to obtain 300,000 signatures on a petition to request the British government to review the Agreement and by educating his people and spreading messages through various social media forums.   He was threatened by the Malaysian government for his involvement in these measures.

   (c)as the Malaysian government gave priority to Muslims of Malay race the applicant, as a native person of Borneo, found it difficult to get a place in any job vacancy with any government department or private sector and experienced hardship and discrimination.

4. On 6 March 2017, a delegate of the Minister refused to grant the applicant the visa (CB 54-64). The delegate found that the applicant’s claims lacked personal details and evidence about his political activities in Malaysia and noted that they were extremely similar or identical to claims made by numerous other recent protection visa applicants from Malaysia which suggested he had relied on pro-forma claims rather than advancing his own legitimate claims.  The delegate also considered that the ability of the applicant to obtain a passport and exit Malaysia without hindrance, suggested that he did not have a political profile and was not of adverse interest to the Malaysian authorities.

5. On 30 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 70-72).

6. On 15 January 2018, the Tribunal invited the applicant to appear at a hearing scheduled for 8 February 2018 (CB 99-101).

7. On 31 January 2018, the Tribunal invited the applicant to attend a rescheduled hearing on 12 February 2018, following a request by the applicant to attend at the Melbourne registry instead of the Brisbane registry (CB 106-108).

8. On 12 February 2018, the applicant attended a hearing before the Tribunal in Melbourne with the assistance of an interpreter in the Malay and English languages (CB 110-112).

9. On the same day of the hearing, the Tribunal affirmed the decision of the delegate and published a written statement of decision and reasons (Reasons) (CB 115-123).

   THE DECISION OF THE TRIBUNAL

10. After setting out the procedural background to the review application, the Tribunal summarised the relevant criteria for the grant of the visa. The Tribunal noted that the issue on review was whether the applicant satisfied the requirements of s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (Act) (Reasons, [1]-[11]).

11. The Tribunal identified the applicant’s claims as recorded in his visa application document before recording, at [16]-[21], the following:

    16. At the commencement of the hearing, the applicant retracted all the claims he had made to the Department.  He told the Tribunal that he signed his Protection Visa application without reading what “his friend” (who he cannot name or recall) told him to say. He was “running out of time” as his tourist visa was “about to expire”, so he “only read a few pages of his claim,” and “just handed it in the way it is.”

    17. The applicant confirmed that it was his signature on the Protection Visa Application Form, including the “Declaration of Truth” section.

    18. At the hearing, the applicant says that he now requires a protection visa as he is “gay”. The Tribunal asked him why he had not told the Department of this at the time of his application.  He responded that he did not know, until he was told by a friend recently, that he could apply for a protection visa if he was gay.

    19. The applicant was unable to provide any details of his relationship history.  He claims that he has not told his friends or family in Malaysia that he is gay.  The applicant said that people assume he is gay because of “his behaviours”.  The applicant claimed to have a “partner in Mildura”.  The Tribunal asked him who his partner was, and he then said he was not a partner, but a “friend”.  He could not remember his friend’s name, and did not provide any further detail.

    20. The extent of the detail that the applicant was able to provide was, “When I was 12, I started liking other males. So here I am, letting Australia know that I am gay.”

    21. The Tribunal invited the applicant to provide any further details about his protection visa claim, and he replied, “No, that’s it.”

12. The Tribunal considered the applicant’s credibility and found that based on his protection visa application and his oral evidence, the applicant’s claims to fear persecution because he was gay, had been contrived for purposes of trying to secure an outcome in his protection visa application. The Tribunal found that the applicant had been unable to provide any credible basis for the shift in his claims and concluded that he was not a witness of any reliability, including based on a view that he “was prepared to sign anything, regardless of its truthfulness or accuracy” (Reasons, [28]).

13. The Tribunal observed that the applicant had been unable to provide any detail about his need for protection as a result of his claimed membership of the LGBTI community, nor did he provide any details of harassment or violent behaviour towards him as a result of being an LGBTI person in Malaysia (Reasons, [28]-[29]).

14. The Tribunal accepted that the applicant did not want to return to Malaysia and that he would like to remain in Australia but did not accept that the applicant had a well-founded fear of persecution if he was to return to Malaysia in the reasonably foreseeable future or that he was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act (Reasons, [30], [33]-[35]).

    PROCEEDINGS IN THIS COURT

15. On 20 February 2019, a Registrar of this Court made procedural orders including that the applicant file and serve at least 28 days before the show cause hearing, any amended application and written submissions.

16. On 8 August 2023, the applicant appeared before a Registrar at a call over at which time the original orders were amended so that the applicant was required to file and serve any amended application and written submissions 28 days before the final hearing which was listed to take place on 13 November 2023. The applicant has not filed any material beyond his originating application and affidavit affirmed 13 March 2018 that annexed a copy of the decision of the Tribunal.

17. In his application document, the applicant advances a single ground of judicial review:

    The Tribunal did not make its decision 13 February 2018 according to law, in that:

    1.   The tribunal committed jurisdictional error by taking into account irrelevant considerations

    PARTICULAR

    a.     In paragraphs 45, the Tribunal referred to the Applicant’s willingness to approach the authorities for identity documents being a strong support for the contention that the applicant did not fear harm in Malaysia.

    b.     Whether the applicant was willing to or was not able to obtain identity documents is an irrelevant consideration of whether or not the applicant fears being harmed in Malaysia.

18. On 13 November 2023 the application came before me for final hearing.  On this date, the applicant appeared in person and received assistance from an interpreter in the Malay and English languages.  The Minister was represented by solicitor advocate, Ms Richardson.

19. At the outset of the hearing, I established that the applicant and the interpreter understood one another, and that the applicant had with him, and had received ahead of the hearing, a copy of his application, the court book filed on 22 February 2019 and a copy of the Minister’s written submissions filed on 26 October 2023.

    The applicant’s oral submissions

20. I invited the applicant to explain how the Tribunal got its decision wrong in his case. 

21. The applicant acknowledged that he had essentially made two applications; the first being the one contained in his application for the visa and the second where he mentioned to the Tribunal at hearing that he feared harm because he is a gay man.  The applicant was critical of the failure of the Tribunal to accept that he was gay.  The applicant told the Court that he could provide evidence that he was gay.

22. The applicant was asked, by reference to his application document, what irrelevant information the Tribunal had taken into account when it made its decision.  The applicant told the Court that the Tribunal should not have asked him questions about his partner.  The applicant also said that the Tribunal should have requested information from him about his life and his claims and it should have given him further time to provide information.

23. I asked the interpreter to interpret from English to Malay, the Tribunal’s reasons at [18]-[21] of the decision record (reproduced at [11] above), which paragraphs are or purport to be, a record of the applicant’s evidence before the Tribunal.

24. I asked the applicant whether these passages contained an accurate record of his evidence before the Tribunal.  The applicant acknowledged that they did but said that the Tribunal had not given his claim necessary consideration.

    The Minister’s oral submissions

25. The Minister’s representative, Ms Richardson, first addressed the ground identified in the applicant’s originating application.  She noted that the ground of review was particularised by reference to paragraph [45] of the Reasons, which, in a decision record that runs only to 36 paragraphs, was a paragraph that did not exist.  This was confirmed by the alleged substance of the paragraph (as particularised), which was described as the applicant’s willingness to approach the authorities for identity documents.  A statement, or line of reasoning to this effect, did not make its way into the Reasons.   

26. Ms Richardson submitted that it was evident from the Reasons that the Tribunal had asked the applicant questions to illicit information about his new claim but had found, despite giving the applicant this opportunity, that the claim was lacking in detail.  The Tribunal found, because of the sparseness of the claim and the fact that it had altered over time, that the applicant was not a witness of truth.

27. In terms of the matters identified by the applicant in his oral submissions, the Minister submitted that the Tribunal had considered all of the applicant’s material and that none of the information to which it had regard possessed the character of being irrelevant.

28. As far as the complaint that the Tribunal should not have asked questions about the applicant’s partner was concerned, the Minister submitted that there was nothing inappropriate about the Tribunal engaging in this line of questioning.  The Tribunal was simply trying to obtain further detail from the applicant.

29. As far as the suggestion that the Tribunal should have sought further information from the applicant was concerned, the Minister submitted that the applicant was squarely on notice that his credibility was in issue having regard to the questions asked, including the attempts to obtain further information from him.  I am asked to infer that the applicant should have been aware of the necessity to volunteer information himself, to the extent it bore on his claim.

30. Relatedly, the Minister rejects the suggestion made by the applicant that he was denied the opportunity or time to produce evidence, noting that the application to the Tribunal was filed on 13 March 2017 and the hearing took place some eleven months later.  There was no evidence that the applicant asked the Tribunal for any further time at any stage during this process.

    Matters raised by the applicant when given the opportunity to reply

31. The applicant told the Court that he had been nervous during the Tribunal hearing and had asked the Tribunal to “pause” on a number of occasions.  He told the Court that his evidence to the Tribunal recorded at Reasons, [21], reflected the fact that he found the hearing stressful.

32. The applicant took the Court to paragraph [29] of the Reasons which contained a statement by the Tribunal that the applicant had not identified any harm flowing from his status as a homosexual. The applicant explained that the lack of any harm reflected his decision not to dress as a gay person.  He acknowledged however that he had not supplied this information to the Tribunal.

33. The applicant, belatedly, told the Court that he had engaged a lawyer to represent him at his judicial review hearing but that the lawyer was unwell and not able to attend.  Following some questions from the Court, the applicant identified the name of a lawyer and law firm and told the Court that he had made payment to the lawyer of $6,000 in two instalments on the understanding that he would be provided with a barrister who would make submissions on his behalf at the hearing.  The applicant had also understood that the lawyer would contact the Court and request an adjournment when it became clear that through illness, the lawyer would not be able to attend the hearing or obtain the assistance of a barrister to do so.

34. Although there was no information before the Court, beyond the matters identified by the applicant, to suggest the involvement of a lawyer, and where the matter of an adjournment was raised for the first time at the eleventh hour by the applicant, I gave the applicant until midday the next day (14 November 2023) to provide to chambers evidence of payments made by him to the identified law firm.

    Events following the final hearing

35. By way of two emails sent in the evening of 13 November 2023, the applicant produced documents to the Court that satisfied me that that the applicant had paid an amount of $6,340 to a Melbourne-based law firm in consideration for the law firm providing assistance with what was described as “Stage 1” of his application for judicial review.  Stage 1 appeared to principally involve the law firm obtaining an opinion from Counsel/Barrister.  The documents also satisfied me that the applicant had been led to believe (by the law firm) that his matter would receive their attention and that they were aware of the hearing date of 13 November 2023.

36. On 14 November 2023 I had my associates send an email to the parties and to the law firm and principal identified in the communications as follows:

    Dear parties/practitioners,

    Following the final hearing of this matter yesterday, the Court has received information from the applicant which suggests that he may have engaged legal representation in relation to his application for judicial review. However, as the status and scope of any such engagement is uncertain the matter will be listed on 28 November 2023 at 10:00 am for a mention on which occasion the person named in the communication provided by the applicant, ###, is invited to appear. Should ## wish to put any information before the Court ## is required to do so by filing an affidavit by 4 pm on 23 November 2023.

37. The matter was called on for mention on 28 November 2023.  Ms Richardson for the Minister appeared in person.  The applicant and the lawyer identified in the email sent by the Court joined the hearing via telephone.  The lawyer had not provided an affidavit but during the mention provided information and an explanation to the Court that led me to make the following orders designed to facilitate the applicant receiving the advice that was the subject of his retainer with the law firm and which he had not yet received.

    1.   The matter be listed for hearing on 15 April 2024 at 10 am.

    2.   The applicant file and serve any amended application with proper particulars of the grounds of application, any supplementary court book and written submissions, on or before 4 pm on 18 March 2024.

    3.   The first respondent file and serve any written submissions in response, on or before 4pm on 1 April 2024.

38. In circumstances where the applicant did not file any further material as contemplated by paragraph 2 of these orders, I had my associates contact the parties and the lawyer named in the applicant’s communications, by email on 27 March 2024 as follows:

    We refer to the hearing of this matter on 28 November 2023, during which orders were made for the applicant to file any amended application, supplementary court book and written submissions by 18 March 2024. Orders were also made listing the matter for a further hearing following the filing of this material. In circumstances where presently this has not occurred, can the applicant please confirm by 4pm on Wednesday 3 April 2024 if he has any intention of filing this material?

1. When no response to this email was received from either the applicant or from the named lawyer, I had my associates send the following email to the same recipients on 5 April 2024:

   We refer to our below email.

   In circumstances where no response was received by or on behalf of the applicant, her Honour is minded to vacate the hearing listed 15 April 2024 and proceed to determine the matter having regard to the material that is before the Court and the submissions of the parties heard on the last occasion.

   Can the parties please provide a response to this proposal by 4pm Wednesday 10 April 2024, failing which her Honour will proceed as indicated above.

2. By email sent on the same day, the Minister’s lawyer informed the Court that the Minister considered it appropriate for the Court to determine the matter without a further hearing.  Neither the applicant nor the lawyer identified by the applicant provided any response to the Court to its email.

3. I considered in these circumstances that it would be appropriate to determine the matter without convening a further hearing.  Although I recognise the limits that attach when an applicant is self-represented, he was nonetheless given an otherwise unrestricted opportunity to expose his arguments when his application was before the Court on 13 November 2023 and further time to obtain merits advice and to potentially refine and/or expand upon his grounds of judicial review thereafter.  The applicant has not communicated with the Court to indicate that he requires more time and/or to object to the course proposed by the Court.

   Consideration of the merits of the applicant’s judicial review application

4. The ground identified in the applicant’s originating application can be dealt with briefly.  The ground refers to a paragraph of reasoning (paragraph [45]) that I infer was taken from a different Tribunal decision.  It cannot sustain any attack on the decision of the Tribunal in this proceeding.

5. As far as the Tribunal is said to have taken into account irrelevant considerations, I do not accept that the applicant’s answers about his partner possessed this character.  The applicant advanced a new claim before the Tribunal that directed attention to his membership of a particular social group of homosexual males in Malaysia.  The Tribunal was entitled to interrogate this claim including by asking questions that might expose information about the applicant’s sexual orientation.

6. It seems to me that provided such questioning was carried out respectfully, the Tribunal was permitted to ask the applicant about his relationship history, and that his answers would relevantly inform its assessment of his claim.  The applicant volunteered that his sexual orientation was cognisable through his “behaviours” and when asked to elaborate, made the claim to have a “partner in Mildura” but subsequently resiled from this answer referring to this individual as a “friend”.

7. The Tribunal’s dispositive reasoning was principally concerned not with the substance of the applicant’s evidence that he had a partner, but rather that the applicant had identified a false claim in his application for the visa and when given the opportunity to provide information about his new claim had provided only the vaguest of detail.  The reasoning adopted by the Tribunal was rational and responsive to matters that were relevant to an assessment of the credibility of the applicant’s claims.  The Tribunal did not engage in reasoning that, for example, involve the assessment of the applicant’s claims and evidence through the prism of unwarranted assumptions about how the applicant should have behaved or approached his sexuality: compare BFH16 v Minister for Immigration and Border Protection (2020) 274 FCR 532.

8. I am also not persuaded that the Tribunal fell into error by failing to request further information from the applicant about his life or to give him further time to provide information.  There is an internal inconsistency in this criticism given the applicant’s earlier submission that the Tribunal had trespassed on his personal life by asking questions about his relationship history.  In the context of the claim advanced by the applicant, this was an obvious line of questioning which the Tribunal appears to have pursued but with limited success. 

9. Further, while the hearing record indicates that the hearing ran for only an hour, there is no suggestion from this record that the applicant sought and/or was denied an opportunity to provide further information. Indeed, when the Tribunal invited the applicant to provide any further details about his protection claim his response to the Tribunal – “No, that’s it” – indicated that he had exhausted the matters that he wished to raise in that forum (Reasons, [21]).

   ORDERS

10. In circumstances where the applicant has been unsuccessful in his application for judicial review, it must follow that the application be dismissed, with an order that the applicant pay the Minister’s costs in a fixed amount reflecting the Court Scale.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons .

Associate:

Dated:       18 April 2024