BWF17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 399
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BWF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 399
File number: MLG876 of 2017 Judgment of: HER HONOUR JUDGE C. E. KIRTON KC Date of judgment: 16 May 2023 Catchwords: MIGRATION - Protection (class XA) (subclass 866) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider claims – whether the Tribunal misinterpreted evidence - no jurisdictional error - application dismissed – costs ordered. Legislation: Migration Act 1958 (Cth) ss 5, 5H, 5J, 5L, 36(2), 65, 91N, 91P, 424A and 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch.2 pt.2 div.1
Cases cited: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
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] HCA 6; 185 CLR 259
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of last submission: 12 October 2021 Date of hearing: 7 October 2021 Place: Melbourne (by videoconference) The First Applicant: Appeared in person The Second Applicant: The First Applicant appeared on behalf of the Second Applicant as litigation guardian Solicitor for the First Respondent: Mills Oakley The Second RespondentL Submitted an appearance, save as to costs ORDERS
MLG876 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWF17
First Applicant
BWG17 (BY HIS LITIGATION GUARDIAN BWF17)
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C. E. KIRTON KC
DATE OF ORDER:
16 may 2023
THE COURT ORDERS THAT:
1.The Applicants’ application filed on 1 May 2017 is dismissed.
2.The First Applicant pay the First Respondent’s costs fixed in the sum of $5,400.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed in this Court on 1 May 2017 (Application), the Applicants seek judicial review of the Administrative Appeals Tribunal (Tribunal) decision, dated 30 March 2017, (Tribunal’s Decision) pursuant to s 476 of the Migration Act 1958 (Cth) (MigrationAct).
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicants a Protection (Class XA) visa (Visa) pursuant to s 65 of the Migration Act.
This matter was heard on 7 October 2021 and proceeded by way of videoconference on Microsoft Teams, as a result of the health protocols adopted by the Federal Circuit Court (as the Court then was) in Victoria at that time (Final Hearing). The First Applicant appeared as litigation guardian on behalf of the Second Applicant who is a minor. The First Applicant (Applicant) appeared before the Court without legal representation, and was assisted by an interpreter in the English and Malay languages.
The Court is satisfied that the Final Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
BACKGROUND
The Court has before it a Court Book filed by the Minister on 10 November 2017, numbering 273 paginated pages (Court Book). The Minister’s Submissions, filed by the Minister on 20 September 2021 (Minister’s Submissions) accurately summarise the background to this matter at [5] to [21]. The Court adopts those submissions as its own with some amendments as follows.
The Applicant and the Second Applicant are mother and son respectively and citizens of Malaysia. The Second Applicant is a minor who was born on 2 June 2006.
On 29 January 2015, the Applicants arrived in Australia on Visitor (Subclass 601) visas.
On 11 February 2015, the Applicants lodged a combined application for Visas (Visa Application).[1] Only the Applicant made claims for protection.[2]
[1] Court Book (CB) 1-117.
[2] CB 2, [2].
Two other children were also included in the Visa Application as members of the Applicant’s family unit, being her eldest son and daughter. In their Form 866Cs, the eldest children (who are not applicants in these proceedings) both claimed that they were born in the United States of America (USA).[3]
[3] CB 13, 88.
The Applicant’s husband (Husband) and father of the three children lodged a separate protection visa application, which was refused by a delegate of the Minister and affirmed by a differently constituted Tribunal.
In the Applicant’s Form 866C, the Applicant made the following written claims for protection:
(a)She left Malaysia because she fears “the people” looking for her Husband who threatened to hurt and kidnap both herself and her children;
(b)She had been threatened many times and almost harmed, and her Husband had been beaten up a few times previously by “these people”;
(c)She moved several times but “they” could still find her;
(d)“Some guys” pointed a knife at her in the middle of the road and said that they would harm her and her family if the money was not repaid; and
(e)She could not seek help within her country as victims seeking help would end up tortured or killed, authorities would simply think it was going to be more work for them and it would be very hard to press charges.[4]
[4] CB 81-84.
No documents were provided in support of the Applicant’s protection claims, save for identity documents for each of the Applicants.[5]
[5] CB 84, 109, 112-117.
On 23 February 2015, the Minister sent correspondence to the Applicant indicating that the Visa Application in respect of the Applicant’s two oldest children was invalid pursuant to s 91N and s 91P of the Migration Act because those applicants were dual citizens of Malaysia and the USA.[6]
[6] CB 133-135.
On 13 July 2015, the Applicant was invited to attend an interview with the Delegate scheduled on 10 August 2015.[7] The Applicant failed to attend and did not provide an explanation for her non-attendance.[8]
[7] CB 154-157.
[8] CB 165.
On 31 August 2015, the Delegate refused to grant the Applicants the visas (Delegate’s Decision).[9]
[9] CB 158-170.
On 7 September 2015, the Applicants applied to the Tribunal for a review of the Delegate’s Decision.[10]
[10] CB 171-177.
On 7 July 2016, an email was sent to the Minister from migration agent Begam Kantara of ‘Smart-Link Migration Consultancy’ indicating that they acted on behalf of the Applicants.[11]
[11] CB 185-188.
On 7 November 2016, the Applicants, through their migration agent, were invited to submit all written evidence by 28 November 2016 and attend a hearing before the Tribunal scheduled for 5 December 2016.[12]
[12] CB 194-196.
On 30 November 2016, the Applicants’ migration agent sent a psychologist’s report dated 25 November 2016 (Report) to the Tribunal that indicated that the Applicant had presented with various psychological conditions,[13] along with various news articles about the instances of kidnapping of children, hate-crimes on Muslims in the USA and the situation in Malaysia generally.[14]
[13] CB 207-210.
[14] CB 211-230.
On 5 December 2016, the Applicant attended the scheduled hearing before the Tribunal, assisted by a Malay interpreter (Tribunal Hearing).[15] The Tribunal Hearing record indicates that the Applicant was to provide any further submissions or documentation in relation to her case on or before 12 December 2016.[16]
[15] CB 204-206, 231-232.
[16] CB 233.
On 12 December 2016, the Applicant provided a written submission to the Tribunal via email and noted inter alia:
(a)Her migration agent was out of the country until 24 December 2016 and therefore she was writing herself;
(b)Her “performance” at the Tribunal hearing was “terrible”;
(c)She knows Malaysian Chinese who were discriminated against in Malaysia;
(d)She “strongly” believes that she was threatened by someone in Malaysia; and
(e)She and her family felt safer in Australia.[17]
[17] CB 234 – 236.
On 10 February 2017, the Tribunal sent correspondence to the Applicants’ migration agent indicating that its records showed that the migration agent’s registration was cancelled on 16 January 2017. Correspondence was also sent to the Applicant indicating the same.
On 14 March 2017, the Tribunal wrote to the Applicant pursuant to s 424A of the Migration Act (424A Letter) and invited the Applicant to comment on particulars of the decision of a differently constituted Tribunal dated 3 July 2016, who affirmed the decision not to grant the Husband a protection visa and made several findings as to the credibility of his claims.
The 424A Letter explained that the information was relevant because it may lead the Tribunal to find that the Applicant’s claims, which were largely based on her Husband’s involvement with an investor, were not credible.[18]
[18] CB 246 – 247.
On 27 March 2017, the Applicant sent correspondence to the Tribunal responding to the particulars of information requested in the 424A Letter and commenting on her current situation.[19]
[19] CB 248 - 252.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at pages 253 to 270 of the Court Book. The Minister’s Submissions at [22] to [26] accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions, with amendments, as its own as follows.
After detailing the background of the application for review, the Tribunal summarised the criterion for a protection visa. The Tribunal then discussed the Applicant’s claims and the evidence before it.
The Tribunal did not accept that the Applicants faced a real chance of serious harm for any reasons in s 5J(1)(a) of the Migration Act if they were returned to Malaysia. The Tribunal did not find a well-founded fear of persecution under s 5J of the Migration Act and therefore was not satisfied that the Applicants were persons in respect of whom Australia owed protection obligations. Consequently, the Applicants did not satisfy the criteria in s 36(2) of the Migration Act for a protection visa and the Tribunal affirmed the decision not to grant the Applicants’ Visas.
The Tribunal had concerns about the credibility of the Applicant’s evidence as follows:
(a)The Tribunal noted that refugees often faced difficulties of proof, but nonetheless doubted the truthfulness of the Applicant’s account of her circumstances in Malaysia.
(b)The Husband lodged a separate protection visa application that was refused. The decision to refuse the Husband’s protection visa was affirmed by a differently constituted Tribunal. The Tribunal considered inconsistencies between the Applicant’s evidence and that of her Husband.
(c)The Tribunal found that the Applicant’s evidence was vague and limited. The Tribunal found that while the Applicant was able to give some detailed information, other aspects were generalised and unknowledgeable, which detracted from the credibility of the claim.
(d)The Tribunal had regard to the findings and outcome of the Husband’s protection visa application. The Tribunal found that the Applicant’s claims were not supported by the findings made by a differently constituted Tribunal in relation to the Husband. The Tribunal invited the Applicant to respond to information put to her. The Tribunal dismissed the Applicant’s suggestion that the Tribunal ought not to give consideration to the findings in relation to her Husband.
(e)Ultimately, the Tribunal found that Applicant’s claims were not credible and that the Applicant did not face a real chance of serious or significant harm from people who believed her Husband owed them money.[20]
[20] CB 268-270.
With respect to the Second Applicant, the Tribunal did not accept that he faced a real chance of serious or significant harm in light of its findings about the Applicant.[21]
[21] CB 269, [50].
PROCEEDINGS BEFORE THE COURT
The Application raised three grounds of review (Grounds):
1.The AAT member failed to conduct a review as required by S 5J(1), (a), (b) (c) of the Migration Act 1958 as she did not consider a claim which arose clearly from the material before her that the applicants faced serious harm if they returned to Malaysia.
2.The AAT member failed to conduct a review as required by S 5(1)(a) of the Migration Act 1958 as the member did not consider a claim which arose clearly from the material before her that the applicant suffered a posttraumatic stress disorder, depression and anxiety symptoms.
3.The AAT member failed to conduct a review as required by S 5L of the Migration Act 1958 as the member misinterpreted the applicant’s meaning when the applicant claimed that her son would be kidnapped by the people who invested in the business that involved the applicant’s husband.
(Without alteration)
The Applicant relied on the following documents at the Final Hearing:[22]
(a) The Application; and
(b) Affidavit of the Applicant sworn or affirmed and filed 1 May 2017.
[22] Transcript P4:L17-22.
The Minister relied on the following documents at the Final Hearing:[23]
(a)Minister’s Response, filed 10 May 2017; and
(b)The Minister’s Submissions.
[23] Transcript P5:L14-29.
At the Final Hearing, I Ordered that on or before 14 October 2021 the Minister file an electronic copy of each of the cases referred to in the Minster’s Submissions as cited, together with an index of those cases.[24] That Order was complied with on 12 October 2021.
[24] Orders of Her Honour Judge C.E. Kirton KC made on 7 October 2021, Order 1.
The Court has also considered the transcript of the Final Hearing, where both the Applicant, through the assistance of an interpreter, and the Minister’s Solicitor made submissions.
CONSIDERATION
Ground 1
Ground 1 claims that the Tribunal breached s 5J(1)(a) to (c) of the Migration Act by failing to “consider a claim which arose clearly from the materials”.
The Applicants do not provide any particulars in relation to this ground. The ground does not specify which claim was allegedly evident in the circumstances with the information provided.
It was submitted by the Minister that the lack of particularity in the ground is a sufficient basis for it to be dismissed. In support of this submission, the Minister relied upon WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 where Gilmour J said at [35] that “[f]ailure to particularise a ground of review is sufficient basis for it to be dismissed”.
The consequences of a failure to particularise grounds was likewise considered by Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, at [8] to [10]:
[8] The consequences of a failure to particularise a ground depend upon the circumstances. […]
[9]However, it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister’s discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or considerations of the relevant matters as being underlying concerns that the appellant seeks to raise.
[10]Further, in these cases, a submission by counsel appearing for the Minister that a decision under appeal is not attended with any doubt, or sufficient doubt or error must reflect the independent judgment of counsel after considering all the materials in performance of counsel’s paramount duty to the Court. It is not to be based upon the lack of particularisation of grounds by an appellant who is appearing in person.
At the Final Hearing the Applicant was given the opportunity to explain the Grounds within the Application, with the assistance of the Malay interpreter. The Applicant made the following submissions at the Final Hearing:
BWF17: Actually, your Honour, first of all, I admit that I don’t really understand the – the three grounds that are in my judicial review application because those three grounds were prepared by someone that I paid. So someone made that for – for me. And ---
HER HONOUR: Yes.
BWF: Yes, and as my respect and abiding of court rules and procedures I attend today’s hearing. Yes.
HER HONOUR: Yes, I understand. Is there anything further that you would like to say?
BWF17: Okay I know that I am not able to prove any jurisdiction error in the tribunal decision. But the true that I and my son’s experience was never a lie. Actually, I don’t – I don’t have anything to say and then I just – I accept any decision made by you regardless how, you know, I may feel.
HER HONOUR: Yes.
BWF17: Yes.[25]
[25] Transcript P4:L27-47.
The Applicant’s submissions gave no clarification or explanation of which claims were not addressed by the Tribunal. I accept the Minister’s submissions that Ground 1 is an unparticularised assertion of jurisdictional error.
I also accept the Minister’s submission that the Tribunal discussed and considered all the claims and evidence. It is apparent that the Tribunal properly considered each of the Applicant’s claims. The Tribunal’s reasons actively engaged with the Applicant’s evidence and the country information to make findings that were formed on a reasonable basis. There is nothing that the Court can identify that amounts to a failure to consider a claim.
Ground 1 is dismissed.
Ground 2
Ground 2 is an allegation that the Tribunal failed to consider the Applicant’s claim that she suffered Post-Traumatic Stress Disorder (PTSD), anxiety and depression, which amounted to a breach of s 5(1)(a) of the Migration Act.
As raised in the Minister’s Submissions, the Applicant’s reference to s 5(1)(a) appears to be erroneous. Section 5(1) of the Migration Act is a definition section that assists in the interpretation and application of the Migration Act. The Applicants could be referencing the description of “physical or mental” pain and suffering in the definition of “cruel or inhuman treatment or punishment.” Alternatively, the Applicants may have intended to refer to s 5H(1)(a) of the Migration Act which defines “refugee”, or s 5J(1)(a) of the Migration Act which defines “well-founded fear of persecution”. The Applicant was given the opportunity to expand on this ground but did not do so.
Regardless of which section was intended to be referenced, I agree with the Minister’s Submissions that there is no apparent or explained correlation between the assertion that the Tribunal failed to consider the Applicant’s mental health conditions, and the requirements of s 5, s 5H or s 5J of the Migration Act.
In this ground the Applicant seems to claim that the Tribunal did not consider her PTSD, anxiety and depression. The Tribunal expressly considered the Report and accepted the Applicant’s claims that she experienced these conditions. [26] The Tribunal made findings based on the Report and evidence given about the two claimed instances of self-harm in 2017, and the effect of these instances on the Applicant’s children.[27] The Tribunal accepted that the Applicant was experiencing mental health symptoms, but noted that the “cause of these symptoms and issues has been self-reported by the [A]pplicant,” and in “light of the concerns the [T]ribunal holds, it is not satisfied that any psychological issues experienced by the [A]pplicant support her claims to have faced threats and harm in Malaysia.”[28] The Minister submitted that although the claims were considered by the Tribunal, the claims did not overcome the significant concerns the Tribunal had with the credibility of the Applicants’ protection claims.
[26] CB 260, [20]; CB 268, [42].
[27] CB 260, [20]; CB 268, [42].
[28] CB 260, [20].
It was further submitted by the Minister that the Applicant’s complaint in Ground 2 appears to be an expression of her disagreement with the Tribunal’s findings. The Minister contends that Ground 2 is inviting impermissible merits review.[29]
[29] Minister’s Submissions filed 20 September 2021 (Minister’s Submissions), 6, [33].
The Minister relied upon Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 where Brennan CJ, Toohey, McHugh, and Gummow JJ said, at [31]:
31.These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon a refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. […]
(footnotes omitted)
I accept the Minister’s Submissions. The weight to be given to evidence is a matter for the Tribunal alone. The Tribunal gave proper consideration as to the mental health conditions that the Applicant was experiencing along with the evidence of self-harm, but was not satisfied that the issues had any bearing on the credibility of her protection claims.[30] The fact that the Applicants disagreed with the findings of the Tribunal based on the evidence before it does not give rise to jurisdictional error.
[30] CB 268, [42].
Ground 2 must be dismissed.
Ground 3
In Ground 3 the Applicant claims that the Tribunal breached s 5L of the Migration Act because it misinterpreted her claim that the Second Applicant would be kidnapped.
It was submitted by the Minister that the reference to s 5L in Ground 3 is misplaced, as this section codifies when a “person is to be treated as a member of a particular social group (other than the person’s family)” [31], and that it is neither apparent nor explained by the Applicant what relevance this section has to the Applicant’s claim that the Second Applicant would be kidnapped.
[31] Minister’s Submissions 7, [37].
The Minister further submitted that the Applicant does not explain her assertion that the Tribunal “misinterpreted” the claim that the Second Applicant would be kidnapped. The Minister relied upon the authority of Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 and submitted that, “Disagreement, even emphatic disagreement, with the tribunal’s reasoning or findings does not establish jurisdictional error”.[32]
[32] Minister’s Submissions 8, [38].
I accept the Minister’s submissions. The Applicant’s reference to s 5L is meaningless and is not explained. I am satisfied that the Tribunal gave proper consideration to the claim that the Second Applicant would be kidnapped by the people who had threatened the Applicant. The Tribunal squarely dealt with the claims regarding the safety of the Second Applicant but rejected the factual premise of the claim.[33] The Applicant’s disagreement with this conclusion, regardless of how emphatic, does not amount to jurisdictional error.
[33] CB 260, [15]; 269, [50].
Ground 3 is dismissed.
CONCLUSION
The Application fails to identify any jurisdictional error in the Tribunal’s Decision.
The Application must therefore be dismissed.
The Minister seeks costs in the sum of $5,400.[34] This amount is below the relevant scale amount pursuant to sch.2 pt.2 div.1 item 3 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), applicable at the time of the Final Hearing. Accordingly, an Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $5,400. This Order takes into account the fact that as the Second Applicant is a minor, the Applicant is the litigation guardian of the Second Applicant, and the Applicant has had the conduct of the proceeding on behalf of the Second Applicant.
[34] Transcript P9:L22-24.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C. E. Kirton KC. Associate: GB
Dated: 16 May 2023
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