BGK18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1134
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BGK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1134
File number(s): MLG 649 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 4 December 2023 Catchwords: MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of the first respondent that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) – applicant in part seeks impermissible merits review of second respondent’s decision – whether the Tribunal misinterpreted the applicant’s claims for protection – found no jurisdictional error on behalf of the Administrative Appeals Tribunal Legislation: Migration Act 1958 (Cth) ss 5H, 5J(1)(a), 36(2)(a), 36(2)(aa), 424A, 425(1), 474(2), 476J Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 28 August 2023 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Rosenblum of Clayton Utz ORDERS
MLG 649 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BGK18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Application filed 15 March 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs in the scale amount of $7,328.00.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 15 March 2018, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 20 December 2017. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa.
CONTEXT
The applicant is a citizen of Malaysia.
On 8 January 2016 the applicant entered into Australia on a UD-601 Electronic Travel Authority visitor visa.
On 12 September 2016 the applicant applied for a Protection (subclass 866) visa (Visa). The applicant’s claims were set out in her Visa application. Relevantly, the applicant claimed that:
(1)she has been physically assaulted and sexually harassed by her ex-boyfriend;
(2)her ex-boyfriend has taken a nude video of the applicant and has threatened to upload the video to the internet and send it to her family if she does not pay him money;
(3)she received a lot of telephone calls from unknown males who sexually harassed her;
(4)she fears her ex-boyfriend and unknown males will continue to harm her if she returns to Malaysia; and
(5)she moved to Singapore where she worked but her ex-boyfriend found that she was living in Singapore and “tortured her for asking for money”.
On 10 March 2017 the delegate of the Minister refused to grant the applicant the Visa.
On 23 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision. In her application for review, the applicant nominated the email address <[email protected]> for correspondence and provided the mobile number “xxxxx xxx00”. The applicant attached a handwritten statement dated 24 March 2017 in which the applicant claimed that:
(1)her ex-boyfriend threatened her mother alleging the applicant stole money;
(2)she will feel shame if the police in Malaysia investigate her claims because her family and neighbours would come to know about it;
(3)she had applied twice for a protection visa within the three months of holding a visitor visa but was cheated by someone she trusted on both occasions; and
(4)she would commit suicide if returned to Malaysia and her family may commit suicide if they find out about her situation.
On 12 January 2018, the Tribunal emailed the applicant inviting the applicant to attend an in-person hearing on 16 February 2018 at 9.30am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 16 February 2018 the applicant appeared before the Tribunal and gave evidence with the assistance of an interpreter.
On 19 February 2018 the Tribunal affirmed the decision of the delegate not to grant the applicant the Visa. On 20 February 2018, the Tribunal sent a copy of its decision and reasons to the applicant’s email address.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 19 February 2018 (Tribunal Decision).
At paragraphs [13], [15] and [18] of the Tribunal decision, the Tribunal summarised the applicant’s claims.
At paragraphs [33]-[36] of the Tribunal decision, the Tribunal found that the applicant’s claims were not credible. Noting that claims involving gender related violence can be distressing, the Tribunal made the following findings in support of its ultimate finding that the applicant’s claims were not credible:
(a)the lack of evidentiary material to support the applicant’s claims about a nude video or photograph of her;
(b)the applicant had not raised the past harassment and harm from a former intimate partner to either her parents or the authorities;
(c)the applicant’s explanation for continuing to remain in Johor and Singapore despite being discovered and harassed by her ex-boyfriend were “farfetched” and “weak”;
(d)the applicant’s oral evidence at the hearing was inconsistent with her written claims, and omitted details contained in her written claims;
(e)the applicant’s nine month delay in applying for protection was “substantial” and supported the finding that she did not have an “urgent” or “genuine” claim, and her explanations for the delay were unsupported by evidence, “fabricated” and not accepted;
(f)given the extent of the adverse credibility findings, the applicant was never in a long term relationship with anyone, let alone a relationship that resulted in acts of physical or sexual harassment or extortion or stalking, and no harassment or extortion occurred; and
(g)the applicant “fabricated” claims about past harm from her ex-partner and other males to deliberately mislead the Department and the Tribunal.
Accordingly, the Tribunal found the applicant did not have a real chance of persecution if returned to Malaysia for a prescribed ground mentioned in s 5J(1)(a) of the Migration Act 1958 (Cth) (Act), nor did the applicant have a well-founded fear of persecution and thus did not meet the refugee criterion in s 36(2)(a) of the Act. For the same reasons, the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Act.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 15 March 2018.
The Application contains the following eight grounds for judicial review (without amendment):
1.I came to Australia as a visitor visa holder and make an application for further visa and made an application for protection visa. Protection visa application was refused then I lodged an application for review of my visa application and AAT has my application and I like to make an appeal application to the FCC to seek justice on my matter.
2.AAT has refused my visa application and has not accepted my claim and believes that I have fabricated my claims. I have been in very venerable position and this has led to physical and sexual abuse by my ex-partner.
3.I have been treated as a Prostitute by my ex-partner and our intimate videos has been put on interment without my consent and this had led to myself being targeted by random people and my life became hell. I have very serious threat to my life and well-being upon return to Malaysia.
4.AAT has refused to accept that I would be targeted by my ex-partner and have very much misinterpret my claim and this has led to my claim refused by AAT. I could be forced turn into sex slave upon return to my home country.
5.I strongly believe that AAT has made an error in law while deciding on my visa application so I would like to make an appeal application to FCC and present supporting documents to prove my claim is genuine and true.
6.AAT failed to treat me fairly when refused my application by stating that I have fabricated my claim and totally refused to accept my claim.
7.I would like to request to FCC to accept my application and have a fresh look on this matter and set new orders and replace orders made by AAT.
8.I would like to request to FCC to set aside old orders made by AAT and decide on this matter by having another look at this matter and I am sure that FCC would accept my claim and will set new orders and replace old orders.
The applicant also filed an affidavit on 15 March 2018 which annexed the Tribunal’s decision.
The Minister filed a Response on 12 April 2018. The Response contained the following grounds:
1.the Administrative Appeals Tribunal (Tribunal) decision dated 19 February 2018 is not affected by jurisdictional error and is therefore a privative clause decision within the meaning of s 474(2) of the Migration Act 1958 (Cth). The Tribunal’s decision, therefore:
a.is final and conclusive;
b.must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
c.is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
The Minister also filed written submissions on 14 August 2023.
On 25 August 2023 the applicant sent to chambers by way of email a document entitled “Supporting submission for an application for a decision made by the AAT” (Document). The Document was not filed in accordance with the Court’s orders nor was it served on the Minister. At the hearing, I invited the applicant to address me as to the matters raised in the Document and provided a copy to the legal representative for the Minister.
The Hearing
The hearing took place on 28 August 2023.
The applicant is self-represented and was assisted by a Malay interpreter at the hearing.
At the commencement of the hearing of the applicant sought that the matter be stood down to speak with the duty lawyer. Upon enquiry the Court was informed that there was no duty lawyer with relevant expertise available to assist the applicant and the applicant was advised that her request was unable to be accommodated. Further, the application was filed more than five years ago and the applicant has had ample opportunity to obtain legal advice if she so wished. Additionally, the applicant confirmed that she had, in fact, already received legal advice. Accordingly, the matter proceeded as listed.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Before considering the specific grounds contained in the application I address a number of the matters raised by the applicant at the hearing. At the hearing the applicant made a number of submissions regarding the factual and credit findings made by the Tribunal. It is apparent from those submissions that the substance of the applicant’s complaint is that she disagrees with the Tribunal’s decision and the rejection by it of her claims. As I endeavoured to explain to the Applicant at the hearing, the Court is unable to re-make the factual findings that were made by the Tribunal or to assess whether or not the Applicant’s claims for protection ought to be accepted. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ (Liang).
Grounds 1 -3
Ground 1-3 identifies the applicant and summarises the background to the current proceedings, together with certain factual assertions made by the applicant but make no allegation of error by the Tribunal. Accordingly, grounds 1- 3 assert no jurisdiction error on behalf of the Tribunal.
Ground 4
By ground 4 the applicant asserts that the Tribunal misinterpreted her claim by refusing to accept that she would be targeted by her ex-partner. At the hearing the applicant sought to recast this ground saying that what she meant by it was that the interpreter at the Tribunal’s hearing misinterpreted her claim. She submitted that she speaks a slightly different dialect to that of the interpreter and she has realised that one or two words were incorrectly interpreted. That submission is rejected. I reject that by ground 4 the applicant sought to assert that the interpreter misinterpreted her claims. Such an assertion is entirely inconsistent with a plain reading of ground 4. However, and in any event, there is no evidence before the Court to establish that the applicant’s claims were misinterpreted by the interpreter. In particular, the transcript of the hearing is not before the Court. Further, the applicant’s claims were taken from her Form 866C and the handwritten note provided to the Tribunal on 24 March 2017. Additionally, at the hearing the applicant was unable to identify which words she says were misinterpreted.
In the context of ground 4, at the hearing the applicant also submitted that she was not given enough time to answer the Tribunal’s questions. Again, there is simply no evidence before the Court to establish this assertion.
As to the ground contained in the Application, the Tribunal correctly set out the applicant’s claims regarding her ex-partner at paragraphs [13] and [18] of its decision. At paragraphs [33]-[36] the Tribunal considered each of those claims as it was obliged to do: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 and at paragraphs [40] and [42] of the Tribunals’ decision concluded as follows:
Based on the considerable adverse credibility concerns and findings above, it is the Tribunal’s assessment that the applicant’s written and oral claims for protection lack overall credibility. Based on the lack of documentary evidence, the applicant’s accepted travel and work history as well as the inconsistencies and omissions mentioned above and the substantial delay in applying for a protection visa, the Tribunal is unable to provide the applicant the benefit of its considerable doubts that the applicant’s overall claims about intimate partner harm were credible or reliable. So extensive are the Tribunal’s adverse credibility findings, that the Tribunal does not accept that the applicant was ever in a long term romantic or sexual relationship with a Tamil Malaysian named Thiagarajan Mokan or anyone else, let alone a relationship that deteriorated into acts of physical, sexual and emotional abuse, acts of humiliation, threats of extortion through the use of nude or pornographic videos or photographs of the applicant, the distribution of such images or obsessive following, shadowing or stalking of the applicant, as claimed. The Tribunal finds that the applicant does not have any documentary evidence, including photographs because it finds that such images or social media activity were contrived.
…
The Tribunal finds the applicant fabricated her critical or dispositive written and oral claims about past intimate partner harm, threatening phone calls from unknown males, and her fears that she will be further seriously or significantly harmed arising from past intimate partner violence claims, if she returns to Malaysia, only to deliberately mislead the Department and the Tribunal. For the same reasons and the lack of medical evidence, neither does it accept that the applicant has any mental health conditions, including suicidal ideation, which will deteriorate if she were to return to Malaysia.
Accordingly, the Tribunal did not misinterpret the applicant’s claims; rather, it rejected them and set out its reasons for doing so.
Ground 4 discloses no jurisdictional error on behalf of the Tribunal.
Ground 5
Ground 5 is entirely unparticularised and this alone is a sufficient basis to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24]. Further, at the hearing the applicant was unable to provide any articulation of the error which she says arose.
As set out above, the Tribunal considered each of the applicant’s claims. The Tribunal considered the principles that apply to assessing the credibility of applicants who are seeking asylum, and applicants whose claims involve gender related violence.
The Tribunal correctly applied the law in ss 5H, 5J and 36(2)(a) of the Act. The Tribunal expressly considered each of the sections. The Tribunal found the applicant advanced no claims related to any of the “reasons” for a “well-founded fear” provided in s 5J(1)(a) and the adverse credibility findings necessitated there be no “well-founded fear of persecution”. Accordingly, the Tribunal found that the applicant was not a refugee for the purposes of s 36(2)(a).
The Tribunal correctly applied the law in s 36(2)(aa) of the Act. The Tribunal correctly applied the “real risk” test in considering whether the applicant faced a “necessary and foreseeable” risk of suffering “significant harm” if returned to Malaysia. Accordingly, given its finding that the applicant’s claims were not credible, the Tribunal found no complementary protection was owed to the applicant.
Accordingly, ground 5 discloses no jurisdictional error on behalf of the Tribunal.
Ground 6
By ground 6 the applicant asserts that the Tribunal failed to treat her fairly by finding that she had fabricated her claims for protection. By this ground the applicant seeks impermissible merits review: Liang.
To the extent that the allegations of unfairness might be understood to be procedural unfairness, the Tribunal complied with its procedural obligations in Division 4 of Part 7 of the Act by:
(a)inviting the applicant to attend a hearing as required by s 425(1) of the Act, which the applicant attended; and
(b)making its decision based solely on the applicant’s evidence, or lack thereof, such that obligations under s 424A of the Act did not arise.
The applicant was aware of the issues on review as they were the same as before the delegate, and addressed in the applicant’s written statement provided with her Tribunal application: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [42]-[44].
Accordingly, ground 6 discloses no jurisdictional error on behalf of the Tribunal.
Ground 7 and 8
Ground 7 and 8 both request this Court to take a fresh look at the application and make new orders. As I endeavoured to explain to the applicant, the Court cannot make orders to grant a Visa (see s 476 of the Act) or undertake merits review of the Tribunal’s decision: Liang. Further, grounds 7 and 8 do not assert any jurisdictional error on behalf of the Tribunal.
It follows that none of the grounds advanced by the applicant disclose any jurisdictional error on the Tribunal’s behalf.
Other matters
For completeness, I have considered the matters raised in the Document. In large part they replicate, in various forms, the substance of the grounds set out above. Generally, they dispute the findings made by the Tribunal. I have already addressed these submissions earlier.
However, the Document also asserts that the Tribunal:
(a)affirmed the delegate’s decision because the applicant failed to provide the Tribunal with supporting documentation;
(b)failed to consider the applicant’s oral evidence; and
(c)failed to consider the “possibility of the risk upon return and the risk involved may meet the threshold of great deal of risk”.
Those submission must be rejected.
Firstly, whilst the Tribunal did consider the lack of documentary evidence to be a relevant matter, it was only one of several factors considered and taken into account by the Tribunal. As already set out, at paragraph [40] of its decision the Tribunal said:
Based on the considerable adverse credibility concerns and findings above, it is the Tribunal’s assessment that the applicant’s written and oral claims for protection lack overall credibility. Based on the lack of documentary evidence, the applicant’s accepted travel and work history as well as the inconsistencies and omissions mentioned above and the substantial delay in applying for a protection visa, the Tribunal is unable to provide the applicant the benefit of its considerable doubts that the applicant’s overall claims about intimate partner harm were credible or reliable.
Additionally, the Tribunal found that the applicant did not have any documentary evidence, including photographs, “because such images or social media activity were contrived”: at [40].
Secondly, it is clear from the decision that the Tribunal did consider the applicant’s oral evidence, but did not accept it.
Finally, as to the issue of risk, it is clear that the Tribunal did consider the applicant’s claims of harm, but found them to be fabricated saying:
The Tribunal finds the applicant fabricated her critical or dispositive written and oral claims about past intimate partner harm, threatening phone calls from unknown males, and her fears that she will be further seriously or significantly harmed arising from past intimate partner violence claims, if she returns to Malaysia, only to deliberately mislead the Department and the Tribunal. For the same reasons and the lack of medical evidence, neither does it accept that the applicant has any mental health conditions, including suicidal ideation, which will deteriorate if she were to return to Malaysia.
Therefore the applicant did not have any actual or genuine personally-held fears of persecution for reason mention in s 5J(1)(a), either at the time of application, during the scheduled hearing, now or into the foreseeable future, based on these claims for protection.
Accordingly, the Tribunal finds that the applicant does not have any credible, reliable or actual well-founded fear of persecution based on her past experienced regarding intimate partner, domestic violence or any other related matter prescribed by s 5J(1)(a), if she were to return to anywhere in Malaysia. Based on the same adverse credibility findings, cumulatively considered, the Tribunal finds that it has no substantial reasons to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia for Malaysia, will face a real risk of significant harm arising from her claims of past intimate partner violence or harassment in the past.
The Documents also does not disclose any error on the Tribunal’s behalf.
The Application before this Court therefore cannot succeed.
CONCLUSION
For the above reasons, the Application must be dismissed.
Costs are sought by the Minister. I will order that the Minister’s costs be paid at scale in the sum of $7,328.00.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 4 December 2023
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