Bke18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1045
•22 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BKE18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1045
File number: MLG 728 of 2018 Judgment of: JUDGE FORBES Date of judgment: 22 November 2023 Catchwords: MIGRATION – protection visa refused by delegate - application for judicial review of Administrative Appeals Tribunal decision to affirm delegate – whether applicant afforded opportunity to put case to Tribunal – whether Tribunal failed to properly consider protection claims – no error identified Legislation: Migration Act 1958 (Cth) s 5J, 36, 65, 425, 425A Cases cited: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 8 November 2023 Place: Melbourne Applicants: In person Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
MLG 728 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BKE18
First Applicant
BKF18
Second Applicant
BKG18
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Applicants’ application for judicial review filed on 22 March 2018 be dismissed.
2.The Applicants pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as at 22 November 2023.
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 FORBES
INTRODUCTION
In this matter the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 26 February 2018. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants a Protection (Class XA) (subclass 866) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
For the reasons set out below, I have determined that the Tribunal’s decision was not affected by jurisdictional error.
BACKGROUND
The following background is derived from the written submissions by the Minister, the court book and the affidavit filed by the applicants. Unless otherwise stated, the following matters are uncontested.
The first applicant is a Malaysian citizen of Muslim faith. The second and third applicants are members of the first applicant’s family unit and are eligible for the grant of a visa if the first applicant is successful in obtaining a protection visa. The applicants arrived in Australia on 10 April 2016 and applied for protection (Class XA) visas on 10 May 2016.
The first applicant’s claims for protection were set out in the application and can be summarised as follows[1]:
(a)he claims he left Malaysia because the government of Malaysia is tracking the group ‘Bersih’ (the largest democratic protest in Malaysia);
(b)he is one of the Bersih group members;
(c)he claims ‘Bersih’ is a non-governmental organisation (NGO) which seeks to reform the current electoral system in Malaysia to ensure free, clean and fair elections. The government of Malaysia is chasing and will take action against people who were involved in this group;
(d)he thinks if he returns to Malaysia, he will get caught by the police because the government is searching for those who joined the ‘Bersih’ group. He will be jobless because of his record of prior involvement with ‘Bersih’;
(e)Malaysia’s economy is not doing well;
(f)he did not try to relocate elsewhere in Malaysia and does not think he can relocate; and
(g)he did not seek help in Malaysia and does not think the authorities can and will protect him.
[1] Court Book (CB) 145
On 7 December 2016 a delegate to the Minister refused the grant of protection visas for the applicants.
In refusing the applicants’ visas, the delegate considered various country information, including the 2016 Department of Foreign Affairs and Trade (DFAT) country report on Malaysia. Based on this country information, which detailed that participants in rallies for the Bersih movement face a low risk of arrest, the delegate was not satisfied that the first applicant faced a real chance of persecution The delegate also noted that the first applicant had provided scant evidence to support his claims and little detail regarding his involvement with Bersih.
Tribunal decision and reasons
On 21 December 2016 the applicants applied to the Tribunal for a review of the delegate’s decision. The following day the Tribunal sent the applicants an acknowledgement of receipt of the application.
On 12 January 2018 the first applicant was invited to attend a Tribunal hearing.
On 19 February 2018 the first applicant appeared before the Tribunal.
On 26 February 2018 the Tribunal affirmed the delegate’s decision to refuse the applicants’ protection visa.
At the hearing before the Tribunal, the first applicant presented evidence and submissions on behalf of the secondary applicants. The secondary applicants did not wish to provide evidence or present separate claims[2].
[2] CB 145
The first applicant’s claims, as set out above, were read out to the first applicant, who confirmed that they were his claims and he did not have any further claims he wished the Tribunal to consider.
In its decision, the Tribunal referred to the 2016 DFAT country report on Malaysia, which noted in relation to political rallies involving the Bersih movements:
“DFAT assesses that protesters face a low risk of arrest when engaged in political rallies. Such individuals have commonly been released on bail shortly following their arrest. High-profile organisers of political rallies face a moderate risk of official discrimination and could be charged under the Peaceful Assembly Act or the Criminal Code.”[3]
[3] CB 148
The Tribunal raised issues of credibility regarding the first applicant’s evidence and involvement with the Bersih and Bersih 2.0 movement as submitted to the Tribunal. The Tribunal did not accept that the first applicant was forced to flee Malaysia due to his political involvement. The Tribunal also did not accept that his involvement with Bersih prevented him from obtaining employment. Further, the Tribunal did not accept that there was a real chance the first applicant would face persecution should he return to Malaysia[4]. The reasons given in support of those findings are summarised below.
[4] CB 149
Firstly, regarding the first applicant’s claim that he was involved in the Bersih movement, the Tribunal accepted and found it credible that the first applicant had participated in a political rally organised by the Bersih 2.0 in 2011, and again in 2015. However, his participation in these rallies did not cause the first applicant to have a well-founded fear of persecution.
Secondly, regarding the first applicant’s claim that he left Malaysia in 2016 due to his fear of being detained or jailed by authorities, the Tribunal noted that the first applicant chose to remain in Malaysia for five years (from the first protest involvement in 2011) without being tracked down by the authorities. The Tribunal did not find that the first applicant was previously nor currently a person of interest to the Malaysian authorities.
Thirdly, regarding the first applicant’s claim that he would be unable to find employment if he returned to Malaysia, the Tribunal noted that the first applicant did not give any evidence to suggest his current or future well-being would be affected due to any reasons pursuant to s 5J(1)(a)(b) or (c) of the Act.
The Tribunal went on to conclude that the first applicant did not have a well-founded fear of persecution and did not meet the refugee criterion in s 36(2)(a) of the Act, and for the same reasons did not meet the complementary protection criterion in s 36(2)(aa).
Judicial Review
On 22 March 2018, the first applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. The sole ground of review is that the Tribunal failed to properly consider all of the first applicant’s claims.
On 14 August 2018, the Minister filed a response to the application. The Minister submits that the Tribunal’s decision was not affected by jurisdictional error. The Minister seeks orders that the application be dismissed and that the applicants pay the Minister’s costs.
On 6 March 2019, a Registrar of this Court made orders to prepare the matter for final hearing including that the applicants file and serve any amended application, affidavits, court book materials and written submissions. The Minister was also directed to file and serve written submissions and any affidavits.
On 8 June 2023, a further order was made by a Registrar of this Court, ordering that the first respondent’s name be changed from Minister for Home Affairs to Minister for Immigration, Citizenship and Multicultural Affairs.
By the time of the final hearing, the Minister had filed an outline of submissions dated 24 October 2023, but the applicants had not filed any submissions or any amended application or new evidence. Accordingly, in its written submissions the Minister responded to the ground set out in the Application.
HEARING
The matter came before me for final hearing on 8 November 2023. The first applicant was self-represented and appeared with the assistance of a Malay interpreter. The Minister was represented by Ms Liddy, a solicitor.
As is my usual course where applicants appear without representation, I explained the course the hearing would follow, including the order of oral submissions and the first applicant’s right of reply. I confirmed that the first applicant and the Malay interpreter understood each other. I informed the first applicant that the Court could not review the merits of the Tribunal’s decision or grant the applicants the visa that they seek. I explained that the role of the Court was restricted to determining whether the Tribunal had made an error in arriving in its decision. I was satisfied that the first applicant understood the explanation and I invited him to ask questions or seek further clarification if there was anything about the process he did not understand.
Prior to the hearing, the Minister filed an affidavit of service confirming that a physical copy of the court book had been served on the applicants on 26 February 2019 by post. The affidavit further deposed that a copy of the Minister’s written submissions had been sent to the applicants by email on 24 October 2023.
At the hearing, the Court sought confirmation that the first applicant had received a copy of the court book. The first applicant affirmed that he had.
The Court then sought confirmation that the first applicant had read the written submissions provided by the Minister. The first applicant indicated he had not read the submissions in their entirety. The Court stood the matter down for a period to allow him to read the submissions with the assistance of the Malay interpreter.
When the matter was resumed, the first applicant was invited to address the grounds of review as set out in the originating application. The first applicant made the following oral submissions.
First applicant’s submissions
Firstly, the first applicant submitted that the Tribunal should have given him more time to gather evidence regarding his claims before it made a final decision. The Court invited the first applicant to expand further on this submission. The first applicant argued that during the Tribunal hearing on 19 February 2018 he was only able to give oral evidence and was not provided with an opportunity to provide any “hard copy evidence” relating to his claims.
Secondly, the first applicant submitted that when he arrived in Australia he did not have the income or capacity to engage a lawyer for his visa application.
When prompted by the Court to address the ground of review, that is to specify which of his claims the Tribunal failed to properly consider in its decision, the first applicant again asserted he was only able to provide oral evidence at the hearing. The first applicant spoke in generic terms and did not refer to any specific claims.
The first applicant said he believed that the Tribunal took his case very lightly.
Minister’s submissions
The Minister relied on its written submissions and developed them orally. In response to the first applicant’s oral submissions the Minister made the following points.
The Minister submitted that the applicants had sufficient time to present material or written arguments before the Tribunal. The Minister noted that the application to the Tribunal for review was made on 21 December 2016 and the acknowledgement letter was sent to the applicants the following day on 22 December 2016. The acknowledgment letter included the following statement:
“If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.”[5]
[5] CB 126
The Minister contended, and I agree, that the acknowledgement letter of 22 December 2016, which invited the applicants to provide material or written arguments for the Tribunal’s consideration, expressly put the applicants on notice.
On 12 January 2018 the applicants were then invited to a hearing, scheduled for 19 February 2018. The Minister submitted that the applicants had 14 months from the time of application to the time of hearing, and over a month from the notice of invitation to the Tribunal hearing, to gather and prepare any material or written arguments for the Tribunal’s consideration, including hard copy documents.
The Minister also submitted that the applicants at no point requested an adjournment or extension of time to provide further evidence to the Tribunal. He did not raise any procedural issues either at or prior to the Tribunal hearing.
The Minister noted that at the Tribunal hearing, the first applicant confirmed that the claims re-stated by the Tribunal were the claims on which he intended to rely. As to the first applicant’s contention that the Tribunal had failed to consider all of his claims, the Minister submitted that the Tribunal’s reasons reveal that it did in fact consider each claim and that its findings rejecting each of these claims were open to it on the material before it for the reasons it gave.
The Minister contended that the Tribunal correctly applied the legislative criteria in assessing the first applicant’s claims and that the Tribunal’s reasons demonstrated a clear engagement with the claims. Further, the first applicant could not identify which claims were overlooked by the Tribunal.
Regarding procedural fairness under Part 7, Division 4 of the Act, the Minister submitted that the applicants had been invited to attend a hearing in accordance with ss 425 and 425A of the Act, which the first applicant attended with a Malay interpreter, during which he had the opportunity to make submissions and present arguments before the Tribunal. As such the Minister submitted that there was no breach of procedural fairness by the Tribunal.
CONSIDERATION
In my opinion, the application for judicial review must be dismissed.
The sole ground of review is that the Tribunal failed to properly consider all of the first applicant’s claims.
The Minister was correct to point out that the first applicant has not identified any specific claims that the Tribunal failed to take into account. Further, nothing the first applicant said at the hearing better identified any errors in the Tribunal’s decision.
The Tribunal’s reasons at [20] discloses that each claim was put to the first applicant with the assistance of an interpreter[6]. The first applicant was asked whether these were his claims and whether there were any further claims he wished the Tribunal to consider. The first applicant confirmed that those were the claims he wished to discuss.
[6] CB 145
I am persuaded by the Minister’s submissions that the Tribunal’s reasons show clear engagement with the relevant statutory task (whether Australia owed the applicants protection obligations[7]) and with each of the claims the first applicant confirmed he wanted to rely upon. Those claims, the first applicant conceded, were partly political and partly personal[8].
[7] CB145 [13]-[17]
[8] CB 147 [34]-[38]
The Tribunal’s reasons deal with each of the protection claims set out at [5] above in a considered and measured fashion. The Tribunal considered the evidence before it[9], applied the relevant statutory framework in assessing that evidence[10] and made findings which were open to it on that evidence.
[9] CB148-149 [40]-[43]
[10] CB 149-150 [43]-[48]
In the absence of any identification by the first applicant of which specific claims the Tribunal failed to consider or consider properly, I find that the ground is not made out. The applicants do not establish jurisdictional error.
Procedural fairness
Notwithstanding, having regard to the first applicant’s oral submissions, the Minister has rightly pointed out that the applicants were put on sufficient notice to provide material or written submissions before the Tribunal hearing on 19 February 2018. The first applicant attended the hearing with the assistance of an interpreter, did not seek an adjournment or further time to provide the “hard copy” material about which he now vaguely complains, and accepted the claims when put to him by the Tribunal.
To the extent that the first applicant is alleging breach of procedural fairness, I find that the Minister acted in accordance with ss 425 and 425A of the Act. The applicants were on notice from the delegate’s decision and the Tribunal’s questioning at hearing that the credibility of the first applicant’s claims would be the determinative issue on review[11].
[11] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
I do not accept the oral submissions made by the first applicant reveal any error on the part of the Tribunal.
DISPOSITION
For the reasons set out above, the applicants have not demonstrated jurisdictional error in the Tribunal’s decision.
The application for judicial review filed on 22 March 2018 will be dismissed.
The applicants should pay the Minister’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as at 22 November 2023.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 22 November 2023
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