BFL18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 567
•26 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BFL18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 567
File number: MLG 631 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 26 June 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal to affirm a decision to refuse the applicant a protection visa – whether the Tribunal erred by not believing the applicant’s evidence – no jurisdictional error – application dismissed. Legislation: Constitution s 75
Migration Act 1958 (Cth) ss 36, 476, 477
Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
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
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at 348
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 12 June 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J Mintz Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 631 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BFL18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
26 JUNE 2024
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:
INTRODUCTON
The applicant is a citizen of Malaysia who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 14 February 2018. 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’s grounds in his application essentially assert that the Tribunal made a jurisdictional error because the Tribunal did not believe him even though he provided evidence. In his oral submissions, he submitted that if he has another chance before the Tribunal, he will be able to provide further information.
For the reasons explained below, the matters raised by the applicant do not establish that the Tribunal made a jurisdictional error. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant arrived in Australia in August 2012 on an Electronic Travel Authority visa.
The applicant applied for a protection visa on 10 November 2016. In a statutory declaration provided with his visa application, the applicant claimed that in 2012 he was required to repossess a luxury car while working for a bank and, when repossessing the car, he was stopped by some well-known gangsters who threatened him. The applicant claimed to fear harm from the gangsters if he returned to Malaysia.
On 6 March 2017 a delegate of the Minister refused to grant the applicant a protection visa.
On 20 March 2017 the applicant applied to the Tribunal for merits review of the delegate’s decision.
On 12 January 2018 the Tribunal invited the applicant to attend a hearing scheduled on 14 February 2018 to give evidence and present arguments in relation to the review. The applicant attended the hearing convened by the Tribunal on 14 February 2018 and, at the conclusion of the hearing, the Tribunal made an oral decision to affirm the delegate’s decision not to grant the applicant a protection visa.
The Tribunal provided the applicant with a written statement of its decision and reasons on 22 February 2018.
SUMMARY OF THE TRIBUNAL DECISION
Having carefully considered the claims made by the applicant, the Tribunal had considerable doubts with much of the applicant’s evidence which the Tribunal considered to be vague and undetailed, and this led the Tribunal to question the applicant’s credibility.
The Tribunal was prepared to accept that the applicant had a business overseas involving tow trucks and insurance and that he worked for a bank in repossessing cars when customers were not able to repay their loans. The Tribunal also accepted that the applicant’s wife may have been angered that the applicant did not return to his family and remained in Australia and that they are now estranged.
The Tribunal had serious reservations about the reasons the applicant initially came to Australia and rejected the applicant’s claim that he came to Australia because a gang called Pakida, which according to the applicant involved policemen, was pursuing him for an amount of compensation. The Tribunal found that the applicant provided a vague and undetailed narrative at the hearing which at times was not consistent with the written statement he provided to the Department, leading the Tribunal to query whether any of the events claimed by the applicant regarding Pakida had ever actually occurred.
In this regard, the Tribunal rejected the applicant’s claim, raised for the first time at the hearing, that he was taken away by gangsters to a house and beaten up and that he sustained serious injuries from the incident. The Tribunal did not accept that the applicant repossessed the car of a gangster whose name he could not recall, who then released henchmen to snatch the car back from him and seek to extort the compensation amount from the applicant.
The Tribunal had regard to police reports allegedly submitted by the applicant’s wife but, given country information about police operations in Malaysia, did not accept that in such circumstances the police would refuse to attend the home to assess for themselves the damage and to write a report that would confirm that the events claimed by the applicant’s wife actually did occur. The Tribunal placed limited, if any, weight on the police reports and found that they were not probative evidence that the applicant was being pursued by Pakida. The Tribunal therefore rejected that the gangsters had visited the home of the applicant or that they harmed his wife or children or anyone else because they were pursuing the applicant for a compensation amount.
Further, given that the applicant stated he was wealthy and earning the equivalent of $6,000 per month, the Tribunal considered that it would seem implausible that he would not simply give money to those he claimed were pursuing him so as not to jeopardise his family’s safety. The Tribunal rejected that the applicant was being pursued by gangsters, Pakida or anyone else for any amount of money in Malaysia.
The Tribunal also found that the applicant’s narrative seemed implausible because if a powerful gangster had owned the luxury car, it did not seem realistic that they would have had to take out a loan, and it seemed incongruent that the gangster whose car the applicant claimed to have repossessed would have even needed to take out a loan in the circumstances claimed.
The Tribunal found that the applicant only lodged his protection visa application when it would have become evident to him that his options for remaining in Australia lawfully had narrowed, and now that his family has broken up because he has not returned to Malaysia. The Tribunal did not accept that a delay of three years in lodging a protection visa application was consistent with someone who had an immediate and urgent need for protection.
Based on the Tribunal’s non-acceptance of any of the claims made by the applicant, other than that he had a business and worked for a bank in repossessing cars in Malaysia and had a family there, the Tribunal did not accept that there would be a real chance of the applicant facing serious harm, or a real risk of the applicant facing significant harm, from the Pakida, gangsters, associates or anyone else on return to Malaysia now or in the reasonably foreseeable future. For these reasons, the Tribunal was not satisfied that the applicant met the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa).
JUDICIAL REVIEW APPLICATION
The applicant filed his application to this Court on 14 March 2018 and therefore made the application within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The only relief sought by the applicant in the application as filed is an order that the decision of the Tribunal be quashed, which does not by itself invoke the Court’s jurisdiction. The Court’s jurisdiction under s 476 of the Migration Act is the same as the jurisdiction of the High Court in s 75(v) of the Constitution, which requires an applicant to seek a writ of mandamus, a writ of prohibition or an injunction against an officer of the Commonwealth. I explained this to the applicant at the hearing and I allowed the applicant to orally amend his application to seek a writ of mandamus. With the amendment made to the application at the hearing, I am satisfied that the application is now within the Court’s jurisdiction.
The applicant raises the following grounds in his application (reproduced without alteration):
1. The member was not believe the information I give.
2. The problem that I got in my country, I got some of the prove.
3. I was summit the prove and evidence to immigration and AAT.
4. The member was still not believe wat I tell and I was confused.
5. The information that I give was not believe by the Tribunal member.
On 20 February 2019 a Registrar of this Court made an order requiring the applicant to file and serve any amended application with proper particulars of the grounds of the application, any supplementary court book and written submissions 28 days before the hearing. The applicant did not file any documents in accordance with the order. The Minister filed written submissions ahead of the hearing.
At the hearing, I raised with the applicant that the grounds in his application lacked sufficient detail for the Court to properly understand his case, and for the Minister to respond to it. I gave the applicant an opportunity to tell the Court why he believed the Tribunal made a serious legal error in making its decision. The matters raised by the applicant at the hearing are discussed below.
The evidence before the Court comprises:
(a)an affidavit filed by the applicant on 14 March 2018, annexing a copy of the Tribunal’s written decision;
(b)the court book filed by the Minister on 6 March 2019 (exhibit 1),
(c)an affidavit of service of Jared Percy Mintz filed by the Minister on 5 June 2024;
(d)a statutory declaration made by the applicant on 20 April 2024 (exhibit 2);
(e)three photographs depicting body parts (exhibit 3);
(f)two documents in a language other than English, provided by the applicant as evidence of his divorce (exhibit 4).
Exhibits 2, 3 and 4 are documents that the applicant attempted to file ahead of the hearing by providing them to my Chambers via email. The applicant was informed that Chambers does not accept documents for filing and he was given information about alternative ways in which he could file his documents. Despite this, the applicant did not file the documents using one of the approved filing methods, but he did refer to these documents at the hearing. In circumstances where the applicant is self-represented, I agreed to mark the documents as exhibits at the hearing and to hear submissions from the parties about the weight that should be afforded to the documents.
As I explained to the applicant at the hearing, the Court cannot consider for itself whether he meets the criteria for a protection visa. I therefore cannot consider for myself the factual assertions in exhibit 2 explaining why the applicant believes he meets the criteria for a protection visa or the photographic evidence depicted in exhibit 3, provided by the applicant to the Court to support his claims for protection. Exhibit 4 appears to be dated 2022 and therefore relates to a state of affairs that did not exist at the time of the Tribunal decision and cannot establish jurisdictional error in the Tribunal decision. The assessment by the Court of whether the Tribunal made a jurisdictional error is based on the circumstances that existed at the time of the Tribunal decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]; Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [77] (Mortimer J).
Exhibits 2, 3 and 4 were not before the Tribunal and accordingly the Tribunal could not rely on them in making its decision. As I understand the applicant’s submissions, the applicant would rely on these documents before the Tribunal if his matter was remitted to the Tribunal. However, the applicant’s matter can only be remitted to the Tribunal if the Court finds that the Tribunal made a jurisdictional error in reaching its decision. The documents provided by the applicant to the Court, but not to the Tribunal, are not relevant to the determination of whether the Tribunal made a jurisdictional error and I therefore give the documents no weight.
CONSIDERATION
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.
Matters raised in the applicant’s oral submissions
In his oral submissions, the applicant submitted that he was not able to tell everything to the Tribunal because the Tribunal member and interpreters were both female and he felt he could not show his injuries. That is why he sent photographs to the Court depicting his injuries. The applicant submitted that he explained in writing that he had been attacked in Malaysia. The applicant submitted that he also made mistakes and he acknowledged that the Tribunal asked him about injuries on his body and about gangsters.
The applicant submitted that the gangsters are dangerous people and that is why he came to Australia to escape. His problem is that he was assaulted by gangsters.
The applicant submitted that he is shy and did not tell everything to the Tribunal. If he gets another opportunity at the Tribunal, he can tell them everything from the beginning. Because he did not tell everything from the beginning, the Tribunal did not believe him.
The applicant also submitted that when the Tribunal made its decision, he was told not to speak and the Tribunal stopped him from speaking. He was told that the member was going to make a decision and that he should not talk.
To the extent that the applicant’s oral submissions relate to the information that he did or did not provide to the Tribunal and the information that he would like to provide to the Tribunal if he gets another chance, I accept the Minister’s submission in response that these submissions do not assert any error with the Tribunal’s decision or the procedure adopted by the Tribunal. They do not establish jurisdictional error.
There is no evidence before the Court that the applicant requested a male Tribunal member or a male interpreter or that he expressed any concern about providing evidence to a female member through a female interpreter. I do not accept that the Tribunal made any jurisdictional error in allocating a female member to hear the matter or a female interpreter to assist the applicant and I also do not accept that any jurisdictional error arises from the applicant’s choice not to provide all relevant evidence to the Tribunal. It was the responsibility of the applicant, as a non-citizen claiming to be a person in respect of whom Australia has protection obligations, to specify all particulars of his claim to be a person in need of protection and to provide sufficient evidence to establish the claim: s 5AAA of the Migration Act. He chose not to do that.
Insofar as the applicant submitted that he was told not to speak by the Tribunal, it is apparent from the applicant’s submissions to this Court that this specifically related to the time when the Tribunal made its oral decision. By this point of the hearing, the applicant had already been afforded an opportunity to make his submissions and the Tribunal was explaining the reasons for its decision. There is no transcript or other evidence before the Court to suggest that the applicant was prevented from making submissions at the hearing before the Tribunal and I do not understand the applicant to be asserting that he was denied an opportunity to speak other than when the Tribunal was delivering its oral reasons for decision. If the applicant was asked not to speak while the Tribunal delivered its oral reasons, this would not amount to jurisdictional error. The opportunity for the applicant to make submissions before the Tribunal arises prior to the Tribunal making its decision.
None of the matters raised in the applicant’s oral submissions establish jurisdictional error.
Grounds raised in the applicant’s application
It is convenient to address the grounds raised in the applicant’s written application globally. Read together, they amount to an assertion that the Tribunal made an error by not believing the applicant despite the applicant giving the Tribunal evidence.
I accept the Minister’s submission that these grounds invite the Court to engage in impermissible merits review. I further accept the Minister’s submission that the Tribunal was not required to uncritically accept all of the applicant’s claims in assessing whether the applicant met the criteria for a protection visa: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451 (Beaumont J). The Tribunal did not need to have rebutting evidence before it rejected the applicant’s claims: Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at 348 (Heerey J); CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [65]. The Tribunal was required to consider the applicant’s claims rationally and reasonably: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [25]. The Tribunal in the present matter carefully considered the applicant’s claims and the evidence that he provided in support of those claims and gave logical and cogent reasons for making the findings that it did. The applicant has not identified anything specific in the Tribunal’s reasons that he says would support a finding that the Tribunal decision was illogical or irrational. I have independently reviewed the Tribunal reasons and I am satisfied that the findings made by the Tribunal were open to it on the evidence before it. The Tribunal decision was not illogical or irrational, in the sense described by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131], [135].
The grounds raised in the application do not establish jurisdictional error.
CONCLUSION
The applicant has not established that the Tribunal decision is affected by jurisdictional error. The application to this Court for judicial review of the Tribunal decision must therefore be dismissed.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 26 June 2024
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