BKH18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 684

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BKH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 684

File number(s):

MLG 744 of 2018

Judgment of:

JUDGE J YOUNG

Date of judgment:

1 August 2024

Catchwords:

MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of the first respondent – where applicants assert they were not given the opportunity to fully present their case before the Tribunal – found no jurisdictional error on behalf of the Tribunal.

Legislation:

Migration Act 1958 (Cth) ss 5J(1)(a), 474, 476

Cases cited:

Craig v South Australia (1995) 184 CLR 163

Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Division:

Division 2 General Federal Law

Number of paragraphs:

58

Date of hearing:

1 May and 11 June 2024

Place:

Melbourne

Counsel for the Applicants:

Self-represented litigants

Counsel for the First Respondent:

Mr Hibbard appearing on 11 June 2024

Solicitor for the First Respondent:

Mr O’Shannessy of Mills Oakley Lawyers appearing on 1 May 2024

Second Respondent:

Submitting appearance save as to costs

ORDERS

MLG 744 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BKH18

First Applicant

BKJ18

Second Applicant

BLC18

Third 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:	1 AUGUST 2024

THE COURT ORDERS THAT:

1.The Application filed 23 August 2018 be dismissed.

2.The Applicants pay the costs of the first respondent fixed in the sum of $8,371.30.

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

1. Before the Court is an Application filed on 23 August 2018, in which the applicants seek judicial review of a decision of the second respondent (Tribunal) dated 27 February 2018. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants a Protection (subclass 866) visa (Visa).

   CONTEXT

2. The applicants are citizens of Malaysia.

3. On 5 September 2015, the applicants entered into Australia on a Visitor UD-601 visa. The second applicant is the wife of the first applicant, and the third applicant is the child of the first and second applicants.

4. On 15 September 2015, the applicants applied for the Visa. The first applicant (Applicant) advanced claims for protection in the Visa application, whilst the second and third applicants were included in the Visa application as members of the Applicant’s family unit. The Applicant’s claims were set out in the Visa application. In summary, the Applicant claimed that:

   (1)he fears for the safety of himself and his family;

   (2)if he and his family return to Malaysia, they will be killed;

   (3)he moved to [Malaysian state] but “they” still followed him and his family;

   (4)the authorities cannot protect him and his family; and

   (5)he and his family will be unable to relocate elsewhere in Malaysia.

5. On 3 May 2016, a delegate of the Minister refused to grant the applicants the Visa (Delegate Decision).

6. On 9 May 2016, the applicants applied to the Tribunal for review of the Delegate Decision.

7. On 10 May 2016, the Tribunal emailed the applicants confirming receipt of their application for review (May 2016 Letter).

8. On 31 July 2017, the Tribunal emailed the Applicant inviting the applicants to attend an in-person hearing on 1 September 2017 at 9.30am (Hearing Invitation). The Hearing Invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicants did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.

9. On 21 August 2017, the applicants provided material to the Tribunal in support of the review application, including a certified translation of a Malaysian Police Report dated 20 August 2015 (Police Report). The Police Report contains the following statement:

   On 11/08/2015 at approximately 1730 Hrs while I was at home at the above address, I was visited by 6 Indian males who introduced themselves as from AmBank and ordered me to pay an AmBank debt of RM95000/- whereas my debt was only RM400/-. They then threatened to kill me and cause trouble for my children in the future as well as destroy my house and car. I wish to also state that these 6 Indian males had previously come to my home many times ordering me to make payment and using the same threats when I refused. I have therefore come to lodge a report for police action to be taken.

10. On 1 September 2017, the applicants attended a hearing before the Tribunal. The Applicant and the second applicant gave evidence with respect to the incident described in the Police Report. The second applicant also gave evidence with respect to a new claim, namely that:

    (a)she had been sexually assaulted by her uncle when she was a teenager;

    (b)the police did not protect her;

    (c)she had not reported the sexual assault to Malaysian authorities as she was embarrassed and feared the police;

    (d)she feared her uncle who was now elderly;

    (e)she feared her uncle would attack the third applicant as she reaches her teenage years;

    (f)that she had felt suicidal and her family did not believe her when she told them about the attack; and

    (g)she did not want her family near her.

11. On 27 February 2018, the Tribunal affirmed the Delegate Decision not to grant the applicants the Visa. On 2 March 2018, the Tribunal sent a copy of its decision and reasons to the Applicant’s email address.

    Tribunal decision

12. The Tribunal issued its statement of decision and reasons on 2 February 2018 (Tribunal Decision).

13. At paragraphs [46]–[48] of the Tribunal Decision, the Tribunal discussed the oral evidence of the Applicant and the second applicant. The Applicant claimed that a licensed financial institution was demanding money from the applicants, arising from a credit card debt in 1991, and that his wife and child had been harassed and threatened by six Indian men coming and knocking at their residence. The Applicant claimed he had avoided the bank when he moved from [Malaysian state] to Kaula Lumpur in 2009 and further claimed he had made the Police Report and relocated to [Malaysian state] before departing Australia.

14. The second applicant claimed that the Indian men visited their residence a few times, twice when she was at home, and that there were threats against the Applicant and their property but not herself. The second applicant did not see the men but only heard their voices. She claimed she and their child remained in Kuala Lumpur when the Applicant relocated to [Malaysian state].

15. At paragraphs [49]–[50] of the Tribunal Decision, the Tribunal discussed elements of the applicants’ claims and inconsistencies in the applicants’ evidence, and how those elements undermined the applicants’ claims for protection based on the Applicant’s indebtedness. This included:

    (a)the Applicant originally claiming he relocated to Kaula Lumpur to seek better opportunities then changing his testimony, saying that it was to avoid the bank’s harassing calls;

    (b)the Applicant’s claim he acquired the debt in 1991 but did not relocate to Kaula Lumpur until 2009, and made no claims that the bank sent threatening debt recovery agents to him in [Malaysian State];

    (c)it would be “very unlikely” that a bank would employ debt recovery agents who would make threats as claimed given the available powers of banks to initiate lawful debt recovery or bankruptcy proceedings; and

    (d)given the historic nature of the claimed debt, it would have been reasonable for the bank to have undertaken bankruptcy proceedings long before the applicants’ departed.

16. The Tribunal stated that when considered cumulatively, the concerns held by the Tribunal invited it to consider that “there are too many implausible, inconsistent and mutually unsupportive elements to [the Applicant’s] claims about indebtedness to a licensed bank to be credible or reliable.”

17. At paragraphs [51]–[56] of the Tribunal Decision, the Tribunal made adverse credibility findings about the specific claims made by the applicants in relation to the claims for protection based on the Applicant’s indebtedness. In summary, the Tribunal did not accept that:

    (a)the Applicant has any debt, substantial or otherwise, with a licensed financial institution;

    (b)the Applicant was ever targeted by debt recovery agents, thugs, or criminals (of Indian or any other ethnicity) on behalf of any lender, nor was it the triggering event leading to the applicants’ departure to Australia;

    (c)the applicants were seriously or significantly harmed or harassed; and

    (d)the Applicant briefly relocated to [Malaysian state] before departing with the other applicants.

18. Further, whilst the Tribunal accepted that the Police Report is not a fraudulent document, it did not accept that the complaint contained therein reflected the applicants’ actual or genuine circumstances about indebtedness leading to violent threats, and found that the complaint was generated by the applicants to “augment the applicants’ otherwise weak, mutually unsupportive and implausible claims for protection about indebtedness and not because they have any genuine claims in this regard”.

19. At paragraphs [57]–[62] of the Tribunal Decision, the Tribunal discussed the second applicant’s claims and evidence with respect to her claim for protection based on her sexual assault.

    APPLICATION FOR JUDICIAL REVIEW

20. The applicants applied for judicial review of the Tribunal Decision on 23 August 2018.

21. The Application contains the following grounds for judicial review (without amendment):

    1.The Tribunal did not appropriately consider my case and did not give me a chance to fully present my case

    2.The Tribunal said they would wait for a document from me but did not give me a chance to present my document

    3. The Tribunal misinterpreted some of our answers and did not consider them properly in making their decision

22. The Applicant filed an affidavit on 3 April 2024 in support of the Application. In the affidavit, the Applicant reiterated that there “may have been a mistake/misunderstanding” in evaluating his situation. The Applicant stated that he is “submitting new evidences” to support his Application and annexed the following to his affidavit:

    (1)three photographs;

    (2)a certified translation of the Police Report;

    (3)a copy of a letter from Rochester Secondary College in relation to the third applicant, dated 22 March 2024;

    (4)a letter from Countrywide Psychology & Counselling Services in relation to the second applicant, dated 21 March 2018;

    (5)a GP Mental Health Treatment Plan, from the Echuca Medical Centre, in relation to the second applicant, dated 21 March 2018 ; and

    (6)an audio recording of the hearing before the Tribunal (collectively, Further Material).

23. The Minister relied on their Response filed 19 April 2018 and an Outline of Submissions lodged on 22 April 2024.

    Hearing

24. The Hearing took place via Microsoft Teams on 1 May 2024 and on 11 June 2024.

25. The applicants were assisted by an interpreter in the Malay and English languages at the hearings. Both the Applicant and the second applicant addressed the Court.

    STATUTORY FRAMEWORK

26. A “privative clause decision” as defined at s 474 of the Migration Act 1958 (Cth) (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].

27. 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

    Further Material

28. It is convenient to first address the Further Material. In relation to items 1, 3, 4 and 5 of the Further Material none of this material was before the Tribunal. Accordingly, this Court has not had regard to that material.

29. Item 2 was before the Tribunal and considered by it.

30. Item 6 was accepted into evidence, notwithstanding that a transcription of the audio file was not filed in the Court. This course was, correctly in my view, not opposed by the Minister. The audio recording is clearly the best evidence of what occurred at the hearing before the Tribunal. Subsequently, the Minister filed a transcription of the audio recording. However, at the hearing on 11 June 2024 the Minister informed the Court that the transcription contained errors. Given that, and the prior admission into evidence of the audio recording, it was determined to proceed on the basis of the audio recording only.

    Ground 1

31. By Ground 1 the applicants assert that they were not given the opportunity to fully present their case, and that the Tribunal failed to properly consider their case.

32. At hearing, the Applicant submitted that the applicants were denied the opportunity to fully present their case, as a result of the conduct of the Tribunal member. Specifically, the Applicant contended that the Tribunal member repeatedly told the Applicant that he was lying about the Police Report and the Police Report had been bought. As a consequence, the applicant submitted that he was intimidated and did not produce the photographs contained in Item 1 of the Further Material (Photographs).

33. For the following reasons, those submissions are rejected.

34. The Tribunal hearing went for a period of approximately 150 minutes, with the second applicants’ evidence taking approximately 47 minutes. Questioning of the Applicant in relation to the creation of the Police Report commenced at around minute 71 and continued for approximately 5 minutes. During the course of the hearing, the Tribunal put to the Applicant that the Police Report contained a URL at the bottom of the page which indicates that it was downloaded from the internet and that on that basis the Tribunal had a “reasonable suspicion” that the Police Report was not genuine. The Tribunal twice asked the Applicant if he had paid someone to create the Police Report. Although it is clear that the Tribunal had considerable concerns about the veracity of the Police Report and the conduct said to have occurred therein, at no stage did the Tribunal tell the Applicant that he was lying or that he had bought the Police Report. There is no error in the Tribunal testing the Applicant’s evidence or putting to him concerns arising from it. Indeed, procedural fairness requires it. Additionally, I note that at paragraph [53] of the Tribunal Decision the Tribunal found that the Police Report was not fraudulent (although the Tribunal did not accept the truthfulness of the matters contained in the report). It is also to be noted that the second applicant’s claim with respect to her historical sexual assault arose only at the Tribunal hearing. Having considered the audio recording of the hearing as a whole, including those parts of the hearing in relation to the Police Report, I am satisfied that the applicants’ had an opportunity to fully present their case and were accorded procedural fairness.

35. As to the assertion that the Tribunal’s conduct precluded the Applicant from providing the Photographs, the Applicant was provided with an opportunity to do so prior to the hearing in the May 2016 Letter and again in the Hearing Invitation. The Applicant did not take either of those opportunities. Further, immediately prior to the conclusion of the hearing the Tribunal asked both the Applicant and the second applicant individually if there were any further documents or country information they wished to provide to the Tribunal. Both responded saying “no”. Additionally, there is a period of approximately six months between the Tribunal hearing date and the Tribunal Decision. The applicants therefore had ample time and multiple opportunities to provide the Photographs to the Tribunal both before the hearing, at the conclusion of the hearing and at any time in the six months following the hearing and prior to the Tribunal Decision. It is also to be noted that the Applicant’s evidence to the Tribunal was that he was not physical harmed whilst in Malaysia as a result of his indebtedness. As such, the Photographs, which I infer are to demonstrate physical injuries the Applicant contends were occasioned to him by those seeking to recover the alleged debt,  are inconsistent with the Applicant’s evidence before the Tribunal. Finally, even if the Photographs had been provided to the Tribunal, it could not have made any difference to the Tribunal’s decision. At paragraph [54] the Tribunal said:

    And for completeness, neither does the Tribunal accept the applicants believed the authorities would not protect them, given they were willing to make a complaint to the police and based on the country information, including the country information about effective protection obtained in the submitted decision record and the most recent DFAT Malaysian country information report.

36. Accordingly, even if the Photographs had been provided to and accepted by the Tribunal, and the Tribunal had accepted the applicants’ claims for protection, that could not have overcome the finding at paragraph [54] of the Tribunal Decision that there were effective protection measures available to the applicants in Malaysia.

37. Accordingly, Ground 1 discloses no jurisdictional error on behalf of the Tribunal.

    Ground 2

38. By Ground 2 the applicants assert the Tribunal did not give the applicants the opportunity to present a document, despite indicating it would do so.

39. In his affidavit filed 23 March 2018, the Applicant states that the Tribunal “failed to give us sufficient time and opportunity to provide documents that they said they would let us provide”.

40. At the hearing, the applicants submissions in relation to Ground 2 were confused, contradictory and inconsistent. Consequently, I consider the truthfulness of those submissions to be doubtful. Ultimately, however, it was submitted that the applicants’ sought to provide to the Tribunal the Photographs and the Mental Health Treatment Plan contained at Item 5 of the Further Material but were informed by the Tribunal that the case was closed and the further documents would not be accepted. The applicants said that they were unsure of when this occurred but thought it was sometime in 2019 or 2020. They submitted however that it was after the Tribunal made its decision in 2018.

41. No error arises from the Tribunal’s refusal to accept further documents following delivery of its decision. The Tribunal Decision was made at 2.28 pm on 27 February 2018. Accordingly, as at that time the Tribunal had discharged its statutory function and was functus officio: Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301.

1. Further, as set out above, the applicants informed the Tribunal immediately prior to the conclusion of the hearing that there were no further documents either of them wished to provide to the Tribunal and there was ample opportunity after the hearing and before the Tribunal issued it decision for the applicants’ to provide any further material they wished to do so.

2. Accordingly, Ground 2 discloses no jurisdictional error on behalf of the Tribunal.

   Ground 3

3. By Ground 3 the applicants assert that the Tribunal misinterpreted some of their answers and did not consider them properly in making their decision.

4. At the hearing the applicants submitted that:

   (a)the Tribunal did not understand the gravity of the second applicant’s sexual assault claim. It was submitted this was due to cultural differences between the second applicant’s culture and that of the member;

   (b)the member misunderstood the facts in relation to the reasons for the Applicant going to [Malaysian state]. The applicants submitted that the Applicant went to [Malaysian state] to visit his parents, whereas the Tribunal found that he left his wife and children;

   (c)the Tribunal misrepresented that the Applicant’s initial debt was 28,000 ringgit, when it was in fact 400 ringgit;

   (d)the Tribunal found that the applicants did not have a real chance of serious harm for any reason in s 5J(1)(a) of the Act based on the Applicant's indebtedness, whereas the Applicant had suffered physical harm as a result of his indebtedness.

5. Those submission are rejected for the following reasons.

6. Firstly, to the extent that there was any cultural misunderstanding in relation to the sexual assault claim made by the second applicant, it did not affect the Tribunal’s understanding of the gravity of the assault. At paragraph [58] the Tribunal said:

   …the Tribunal accepts the second applicant had experienced a very serious and degrading sexual assault by a male family member as claimed; that she had not reported this criminal matter for the reasons claimed and that she genuinely personally-held fears for emotional harm for herself and of physical and sexual harm for her daughter..

7. Further at paragraph [59] the Tribunal said:

   The Tribunal accepts that both the second and third applicants will face a chance of serious harm, namely sexual and physical assault, arising from a sexual predator within the second applicant's extended family…

8. Secondly, in relation to the Applicant going to [Malaysian state], the Tribunal at paragraph [48] said:

   Of particular concern to the Tribunal were the inconsistencies and implausibilities between the first and second applicants' oral evidence at the scheduled hearing and the police report. With regards to the submitted police report dated 20 August 2015, the Tribunal enquired as to the reasons the applicants did not earlier report the serious threats of violence towards them given the incident claimed to be occurred on 11 Augusta 2015. The first applicant responded that he had urgently fled to [Malaysian state] prior to making the police report while his wife and daughter remained in [Kuala Lumpur]. When the Tribunal pointed out that the police report was issued in a police station in peninsular Malaysia not in [Malaysian state] in Borneo, the applicant shifted his testimony by claiming that he departed for [Malaysian state] after the police report was issued. This changed testimony especially undermines the applicants' claims to have been threatened in such a dramatic manner or that the first applicant had relocated at all. The second applicant claimed that she and the third applicant remained in [Kuala Lumpur] but moved to the house belonging to second applicant's sister. The Tribunal also finds it implausible that the first applicant fled to [Malaysian state] for safety leaving his wife and child in [Kuala Lumpur], even if they moved to the second applicant's sister house, given the seriousness of the claim. Furthermore, the Tribunal note that the first applicant returned to Kuala Lumpur before departing. Had the applicants genuine and urgent personally held fears of being harmed in Kuala Lumpur, as claimed, and outlined in the police report, then it would be reasonable to expect the applicants to have all left for [Malaysian state] or Singapore before departing for Australia and not to remain in metropolitan Kuala Lumpur, given the seriousness of the claims.

9. The Applicant does not deny that he left Kuala Lumpur and travelled to [Malaysian state], leaving his wife and child in Kuala Lumpur. I consider it clear from the above that the Tribunal considered it implausible that the Applicant would leave his wife and child in Kuala Lumpur and travel to [Malaysian state] if he feared harm as claimed. Accordingly, it was the fact of travel to [Malaysian state] by the Applicant alone, leaving his wife and child in Kuala Lumpur, that was material to the Tribunal’s reasoning, not the reasons for the travel.

10. Thirdly, as to the quantum of the initial debt, at paragraph [46] the Tribunal said:

    …The applicant claimed the AmBank, a licensed financial institution, was demanding 95,000 Malaysian ringgits (or about $30,000 Australian dollars) arising from a 28,000 Malaysian credit card debt that began in 1991…

11. The Applicant conceded at the Tribunal hearing that the total debt he claims to owe is 95,000 ringgits. Accordingly, the Tribunal has accurately recorded the debt upon which the Applicant relies. The audio file of the Tribunal hearing demonstrates that the Applicant’s evidence to the Tribunal, ultimately, was that the initial quantum of the debt was 400 ringgits. Accordingly, the Tribunal’s reference to 28,000 ringgits in paragraph [46] is an error and appears to have arisen from the Tribunal estimating during the hearing that 95,000 ringgit is approximately $28,000 Australian dollars. However, that error is not material. Irrespective of the quantum of the initial debt, the Tribunal did not accept that the Applicant had any debt, substantial or otherwise, with a licensed financial institution; did not accept that the Applicant was ever targeted by debt recovery agents, thugs or criminals of Indian or any other ethnicity on behalf of any lender, licensed or otherwise, in the past; and did not accept that it was the triggering event leading to the applicants’ departures to Australia. Further, the Tribunal did not accept that the applicants were seriously or significantly harmed or harassed, including through property damage, or physically threatened, either by phone or face-to-face, either in Malaysia or Australia. Accordingly, the quantum of the original debt was not material to the Tribunal’s findings.

12. Fourthly, the applicants’ complaint as to the Tribunal’s findings that they did not have a real chance of serious harm for any reason in s 5J(1)(a) of the Act based on the Applicant's indebtedness, does no more than express disagreement with the Tribunal’s factual findings and does not identify any jurisdictional error.

13. Accordingly, Ground 3 discloses no jurisdictional error on behalf of the Tribunal.

    DISPOSITION

14. For the reasons set out above, the Application must be dismissed.

15. The Minister seeks that the applicants pay its costs in the amount of $9,071.30. This is comprised of scale costs of $8,371.30, plus $700 for attendance of Counsel on 11 June 2024 at the further hearing. Whilst I will order costs to be paid by the applicants, I decline to order costs in the amount sought by the Minister. Firstly, Counsel did not appear on behalf of the Minister at the first hearing of this matter on 1 May 2024 and there is no apparent reason for the briefing of Counsel for the further hearing. Secondly, the further hearing on 11 June 2024 was necessitated because, notwithstanding the audio recording being able to be accessed by the solicitors for the Minister on 30 April 2024, solicitors for the Minister advised the Court on that date by email that:

    Noting again, however, the length of the recording (2.5) hours, and the fact that the applicant does not appear to have filed the recording or made any submission as to its relevance to the proceeding, the first respondent does not presently propose to listen to the recording.

16. Given that the applicants are unrepresented, do not speak English as their first language, did indeed attempt to file by way of affidavit the audio recording of the hearing and in light of the ground of review contained in the Application, the decision by the solicitors for the Minister not to consider the audio recording prior to the hearing was, in my view, unreasonable and necessitated a further hearing following particularisation of the grounds of review being provided by the Applicant’s at the first hearing.

17. Accordingly, I decline to order costs against the applicants arising from the further hearing and shall order that the applicants pay the Minister’s costs in the scale amount of $8,371.30.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

Associate:

Dated:       1 August 2024