BPN18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 461
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BPN18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 461
File number(s): MLG 821 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 1 June 2023 Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal affirming decision not to grant the applicant a Protection (Class XA) (Subclass 866) visa – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal’s reasoning otherwise demonstrated relevant error – application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss.5, 5AAA, 36, 65, 474, 476 Cases cited: Craig v South Australia (1995) 184 CLR 163
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 24 May 2023 Place: Melbourne The Applicant: Appeared in person Counsel for the First Respondent: Clayton Utz ORDERS
MLG 821 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BPN18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
1 June 2023
THE COURT ORDERS THAT:
1.The application filed on 29 March 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.
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 MANSINI
IN SUMMARY
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) pursuant to s.476 of the Migration Act 1958 (Cth) (Act). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) (Subclass 866) visa.
For the reasons that follow, the application is dismissed.
CONTEXT
The Applicant is a female citizen of Malaysia. On 13 September 2015, the Applicant arrived in Australia on a UD-601 Electronic Travel Authority visa and Malaysian passport.
On 13 December 2015, the Applicant’s travel visa expired and the Applicant remained in Australia as an unlawful non-citizen.
On 26 August 2016, the Applicant applied for a Protection (Class XA) (Subclass 866) visa (the protection visa application). There the Applicant described her reasons for claiming protection, and specifically for leaving Malaysia, in the following terms:
I LEAVED MALAYSIA BECAUSE OF THE POLITICAL AND ECONOMICAL STATUS OF MY COUNTRY BECAME WORST AND DOWN, OUR COUNTRY CURRENCY DECREASE DRAMATICALLY. THE PRICE MORE HIGHER AND IT’S NOT PARALLEL TO OUR BASIC SALARY. I BECOME UNAFFORDABLE
(sic.)
On 23 January 2017, a delegate of the First Respondent Minister refused to grant the protection visa application. A notification and copy of the decision record was sent by email to the Applicant at her nominated email address.
On 14 February 2017, the Applicant applied to the Tribunal for a review of the delegate’s decision and, on 16 February 2017, the Tribunal sent an email to the Applicant at her nominated email address by way of acknowledgment.
On 12 January 2018, the Tribunal sent an email to the Applicant at her nominated email address which invited her to attend a hearing scheduled for 9.30am on 19 February 2018. The invitation noted arrangements for the hearing including a Malay interpreter. The invitation also confirmed the consequences of non-attendance at the hearing in that a decision may be made without hearing further from the Applicant and also included information about requesting a postponement of the hearing date which would only be granted for very good reason.
On 19 February 2018, the Tribunal’s hearing was cancelled. The Tribunal’s hearing record reflected that the Tribunal Member cancelled the hearing at 9.45am due to the Applicant’s non-appearance.
On 26 February 2018, the Tribunal decided to affirm the delegate’s decision. A notification and copy of the decision record (Reasons) was sent by email to the Applicant at her nominated email address.
Tribunal’s Reasons
The Tribunal’s Reasons were brief.
The Reasons commenced with a summary of the Tribunal’s efforts to hear from the Applicant about her application. It was recorded that the Applicant did not attend the hearing as scheduled on 19 January 2018, did not respond to the invitation to attend the hearing and had not contacted the Tribunal to explain her non-attendance or engage further in the review process: Reasons at [4]-[5].
The Tribunal outlined the relevant statutory criteria: Reasons at [6]-[11].
A summary of the Applicant’s claims was at [15]:
•She left Malaysia because the country’s political and economic status became worse.
•The currency has decreased dramatically, prices are higher and it has become unaffordable.
•Her family and community will torture and hate her and this mental torture will make her kill herself.
•She did not move to another part of the country as she did not have money or transport, and nobody will help her as it is a family matter and involves religion.
The Tribunal found that the Applicant’s claims were “vague and lacking in detail”: Reasons at [16]. The Tribunal further noted the requirement of s.5AAA of the Act that the Applicant is responsible to specify all particulars of her claim and provide sufficient evidence to establish the claim: Reasons at [17].
At [18], the Tribunal stated that:
[…]
Had the applicant attended the hearing, the Tribunal would have explored the applicant’s claims with her and sought further information from him on a range of details relevant to his claims. For example, the applicant has not provided sufficient and clear information about the situation that has led her to claim that the economy and political situation in Malaysia caused her to leave for Australia. The Tribunal would have also enquired in detailed and allowed the applicant to comment as to why she claimed for example, she suffered from these wider happenings. Was it due to her religion, political opinion, or membership of a particular social group?
(sic.)
The country information before the Tribunal, which it said would have been discussed with the Applicant at the scheduled hearing (namely the Department of Foreign Affairs and Trade (DFAT) Country Report - Malaysia dated 19 July 2016) and the process of questioning had the Applicant attended the hearing before the Tribunal was summarised: Reasons at [19]-[21].
In considering the Applicant’s individual circumstances on a cumulative basis, the Tribunal found that there is not a real chance in the reasonably foreseeable future that the Applicant would be persecuted for any reason, her fear is not well-founded in accordance with s.5J and therefore, she is not a refugee within the meaning of s.5H: Reasons at [22].
Further, considering the Applicant’s individual circumstances, the Tribunal found that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant’s removal to Malaysia there is a real risk the Applicant would suffer significant harm: Reasons at [23].
The Tribunal concluded that the Applicant did not meet the requirements of ss.36(2)(a) or 36(2)(aa): Reasons at [24]-[25].
Proceedings before this Court
On 29 March 2018, the Applicant applied to this Court for judicial review of the Tribunal’s decision.
On 24 April 2018, the First Respondent filed a notice of address for service and a response.
On 3 April 2019, procedural orders were made by a Registrar of this Court and the matter was set down for hearing on a date to be advised and filing directions were issued.
On 17 April 2019, the First Respondent filed a Court Book.
On 18 May 2022, further procedural orders were made by a Registrar of this Court which amended the name of the First Respondent to the relevant name at the time and listed the matter for hearing on a date to be fixed.
On 18 April 2023, the parties were advised that this matter was listed for hearing on 24 May 2023 and a program for filing was issued.
On 20 April 2023, the First Respondent filed an updated notice of address for service.
On 16 May 2023, the First Respondent filed an outline of written submissions.
On 17 May 2023, the First Respondent filed a bundle of authorities.
On 24 May 2023, the matter proceeded to hearing before the Court as presently constituted. The Applicant appeared in person and was assisted by a Malay interpreter. The First Respondent was represented by Counsel.
At the time of the hearing and these reasons, the Applicant had not filed any further material or an outline of submissions as directed. The Applicant had received the First Respondent’s Court Book and written outline of submissions and was afforded an adjournment of the hearing before this Court to have those submissions interpreted with the assistance of the Court-provided interpreter. At the hearing, the Applicant made oral submissions to the Court which are addressed as relevant in the following reasons.
THIS APPLICATION FOR JUDICIAL REVIEW
By the application filed on 29 March 2023, the Applicant sought relief in the form of an order that the decision of the Tribunal be quashed, a writ of mandamus be directed to the Tribunal requiring it to determine the Applicant’s application according to law and an injunction restraining the Minister by himself of his Department, officers, delegates or agents, from making the future decision or taking the other action subject of the proceedings. The Applicant provided the following 2 points under the heading “Grounds of application”:
1.THE TRIBUNAL MAKE DECISION ON 26/2/2018 WITHOUT LOOKING THE EVIDANCE SAME LIKE WHEN APPLICANT IN ORAL INTERVIEW TRIBUNAL TOTALLY LIKE NOT UNDERSTAND WHAT I FEEL LIKE.
2.AND THE INTERPRETOR NOT GOOD TRANSLATE BECAUSE WHEN I EXPLAIN TO TRIBUNAL THE INTERPRETOR DID NOT DO VERY WELL IN RIGHT DIALECT.
(sic.)
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, [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, 175.
The grant of a protection visa is confined by the criteria at s.36 of the Act. Relevant to the present application, at s.36(2)(a) and (aa), the Act provides that “a” criterion for a protection visa is that the applicant for the visa is:
·a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a “refugee”: s.36(2)(a), see also ss.5H and 5J for the meaning of “refugee” and meaning of “well-founded fear of persecution”; or
·a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer “significant harm”: s.36(2)(aa). See also s.36(2A) for the meaning of “significant harm”.
An administrative decision maker is required to refuse to issue a visa absent the requisite satisfaction that the criteria applicable to the visa application are satisfied: s.65.
As concerns the present application, the statutory framework and principles applicable to the conduct of a Part 7 Review by the Tribunal are outlined below.
CONSIDERATION
Ground 1
By the first ground of the review application, the Applicant was understood to contend that the Tribunal had misunderstood, misconstrued or overlooked her evidence at oral interview. At the hearing before this Court, the Applicant was not able to elaborate on what was meant by this contention other than to say that her friends had assisted her in preparing the application form and she did not understand what this ground was intended to say.
As the factual context summarised above reflects, there was no oral interview or hearing before the Tribunal.
The Applicant did not identify or draw the Court’s attention to any evidence that was before the Tribunal which was misunderstood or not considered by the Tribunal.
At the hearing before this Court, the Applicant raised a range of matters including: her poor health which has suffered on account of the delay in processing the protection visa application; the circumstances of her family in Malaysia (namely, her husband with a disability and daughter studying nursing who would like to come to Australia); debts owed in Malaysia; her good employment record and tenure in Australia. Those matters do not appear to have been before the Tribunal. To the extent that those matters may have been relevant to the merit of her protection visa application, unfortunately for the Applicant she did not avail of the opportunities to raise those matters with the Tribunal (or, before it, the delegate) and therefore the Tribunal has not erred in failing to take those matters into account.
As was explained to the Applicant at the hearing before this Court, this Court is not permitted to engage in a review of the merits of the Applicant’s claims and grant a visa.
On review of the Reasons, I have formed the view that the Tribunal considered the Applicant's claims and evidence in an appropriate manner and I discern no error in these respects.
Ground 2
By the second ground of the judicial review application, the Applicant was understood to complain of procedural difficulties in a translation at hearing or oral interview before the Tribunal.
As the factual context summarised above reflects and per ground 1, there was no oral interview or hearing before the Tribunal. Had the Applicant availed of the opportunity and attended the scheduled Tribunal hearing, she would have been afforded the assistance of a Malay interpreter, as the Tribunal’s record reflects.
At the hearing before this Court, the Applicant also claimed that the friends who had assisted her with the protection visa application had misinterpreted the Tribunal’s hearing invitation.
The Tribunal’s hearing invitation was before the Court and, on its face, plainly set out the time and date and place of the Tribunal hearing, the consequences of failure to attend and the ability to request a postponement. The Tribunal’s hearing invitation was emailed to the Applicant at her nominated email address which is the same email address at which all communications in the matter have been sent (and at least some of which the Applicant has acknowledged she did receive).
The Applicant did not identify any other difficulty in translation or interpretation.
To the extent that the Applicant, or her friends, did not understand the Tribunal’s hearing invitation, I discern no error on the part of the Tribunal or its procedure.
CONCLUSION
For the above reasons, the Applicant has not identified error of jurisdiction in the Tribunal’s Reasons and nor is any such error discernible on the face of those Reasons.
I certify that the preceding fifty-one (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 1 June 2023
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