Bzo18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1174

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BZO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1174

File number:	MLG 1049 of 2018
Judgment of:	HER HONOUR JUDGE C.E. KIRTON KC
Date of judgment:	13 December 2023
Catchwords:	MIGRATION LAW – review of Administrative Appeals Tribunal decision – affirmation of Delegate’s decision to refuse to grant a Protection visa – whether Tribunal committed jurisdictional error – no jurisdictional error – application dismissed – costs ordered
Division:	Division 2 General Federal Law
Number of paragraphs:	31
Date of last submissions:	6 December 2023
Date of hearing:	6 December 2023
Place:	Melbourne
The Applicant:	Appeared in person
Solicitor for the First Respondent:	Sparke Helmore
The Second Respondent:	Submitted an appearance, save as to costs

ORDERS

MLG 1049 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BZO18

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:	13 DECEMBER 2023

THE COURT ORDERS THAT:

1.The Application filed 20 April 2018 be dismissed.

2.The Applicant pay the First Respondent’s costs in the sum of $5,000.

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

1. By an application filed 20 April 2018 (Application), the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 19 March 2018 (Tribunal’s 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 (Visa).

2. The Application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) and contains within it a single ground of review which the Court will consider below.

3. This matter was heard on 6 December 2023 and proceeded in person at the Court’s Melbourne Registry (Hearing). The Applicant attended the Hearing and was assisted by a Malay interpreter.

   ISSUES IN DISPUTE

4. The issue in dispute is whether the Tribunal’s Decision was affected by jurisdictional error.

   SYNOPSIS

5. I have determined that the Tribunal’s Decision was not affected by jurisdictional error and therefore the Application must be dismissed.

   BACKGROUND

6. The Court has before it a Court Book filed by the Minister on 29 May 2019, numbering 84 pages in total (Court Book). The Court has reviewed the material in the Court Book in detail.

7. The Applicant was born in Malaysia and arrived in Australia on 6 November 2016 as the holder of a UD-601 Electronic Travel Authority visa.[1] The Applicant’s family, including her husband and son, continue to reside in Malaysia.[2]

   [1] Court Book (CB) 25 and 47.

   [2] CB 22.

8. On 5 December 2016, the Applicant applied for the Visa (Visa Application).[3] In the Visa Application, the Applicant set out her claims for protection, which included fearing harm from the Malaysian authorities as a result of her previous support for the Sabah and Sarawak Union (SSU) and having left Malaysia after being verbally and physically threatened.[4]

   [3] CB 1-42, 47.

   [4] CB 36-38.

9. On 10 March 2017, the Department of Immigration and Border Protection notified the Applicant that her Visa Application had been refused (Delegate’s Decision). In summary, the Delegate did not consider that the Applicant was a person of interest to the Malaysian authorities on account of her claimed support of the SSU, noting that she was able to obtain a passport and exit the country without issue, suggesting she has no political profile. The Delegate also found that the Applicant’s protection claims were vague and ‘extremely similar or identical’ to claims made by other recent protection visa applicants from Malaysia.[5] As such, the Applicant was found not to be owed protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act.

   [5] CB 52.

10. On 19 March 2017, the Applicant applied to the Tribunal for review of the Delegate’s Decision.[6] A hearing before the Tribunal was held on 6 February 2018, which the Applicant attended and received assistance from a Malay interpreter (Tribunal Hearing).[7]

    [6] CB 59-60.

    [7] CB 71-74.

11. On 19 March 2018, the Applicant was notified of the Tribunal’s Decision, affirming the Delegate’s Decision.[8]

    [8] CB 74-81.

    TRIBUNAL DECISION

12. The Tribunal’s Decision appears at pages 76 to 84 of the Court Book.

13. The Tribunal summarised the relevant background to the matter and legislative framework for the grant of the Visa.[9] The Tribunal noted that it had taken into account relevant country information and policy guidelines in making its decision.[10]

    [9] CB 77-78, [1]-[11].

    [10] CB 78, [12].

14. The Tribunal accepted the identity of the Applicant.[11]

    [11] CB 78, [14].

15. At the Tribunal Hearing the Applicant was asked to confirm that her protection claims as made in the Visa Application were correct and formed the basis of her claims for protection before the Tribunal.[12] In response, the Applicant gave oral evidence to the Tribunal that:

    21.[…] what had been written and submitted to the Department as part of her application for Protection was not correct. The applicant admitted that she was not under any threat or subjected to attention by the Malaysian government or security and police forces for any political activities concerning the [SSU] political dispute. The applicant also admitted that these claims as submitted were contrived by a third person (which she did not name) to whom she paid AUD$350.00. The purpose for the applicant’s claims was (as she was advised by this third person) to gain the ‘right’ to ‘…work legally…’ in Australia.[13]

    (Without alteration)

    [12] CB 79, [20].

    [13] CB 79, [21].

16. The Tribunal continued by addressing the Applicant’s oral evidence at the Tribunal Hearing, stating that the Applicant had admitted that she chose to leave Malaysia to find work and assist her family financially, as opposed to leaving out of any fear of harm.[14] The Tribunal accepted these claims by the Applicant, noting that the Tribunal was assisted by her ‘display of truthfulness and sincerity’ with respect to her ‘actual claims’.[15]

    [14] CB 79, [22]-[25], [29].

    [15] CB 80, [29].

17. The Court notes that the Tribunal made minor errors in paragraphs [30] and [32] of its decision, where reference was made to a male visa applicant and ‘unlicensed moneylenders in Malaysia’ which plainly do not relate to the Applicant in this matter.

18. As a result of the Applicant’s admissions to the Tribunal, and the Tribunal’s resultant findings, the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act. As such, the Tribunal affirmed the Delegate’s Decision.

    PROCEEDINGS BEFORE THE COURT

19. The Applicant filed the Application in this Court on 20 April 2018, together with an Affidavit sworn on the same day, annexing the Tribunal’s Decision. The Applicant has been self-represented throughout these proceedings and remained so at the Hearing.

20. The ground of review in the Application provides as follows (Ground of Review):

    The tribunal did not make its decision 19 March 2018 according to law, in that

    1.The tribunal committed jurisdiction error by taking into account irrelevant considerations.

    PARTICULAR

    a.in paragraphs 45, the tribunal referred to the Applicant’s willingness to approach the authorities for identity documents being a strong support for the contention that the applicant did not fear harmed in Malaysia.

    b.Whether the applicant was willing to or was able to obtain identity documents is an irrelevant consideration of whether or not the applicant fears being harmed in Malaysia.

    (As written)

21. No further material or submissions were filed in this matter by the Applicant.

22. The Minister in this matter filed the following documents:

    (a)A Response, filed 17 July 2018;

    (b)Affidavit of Tareena Martin, affirmed and filed 17 August 2023;

    (c)Submissions, filed 17 November 2023;

    (d)Affidavit of Service of Kristina Petrovski, affirmed and filed 5 December 2023; and

    (e)A List of Authorities.

23. In addition to the documents referred to above at [19] and [22], the Court has also considered the transcript of the Hearing, wherein the Applicant and the Minister’s representative made brief oral submissions.

24. The Court will now consider the Ground of Review. 

    CONSIDERATION

25. The Ground of Review essentially asserts that the jurisdictional error purported to have been committed by the Tribunal relates to its consideration of an irrelevant matter, being the fact that the Applicant was willing and able to contact authorities to obtain identity documents.

26. The Court notes at the outset that the first particular of the Ground of Review contains an erroneous reference to paragraph [45] of the Tribunal’s Decision, of which there is not one. The Minister submitted that this particular is plainly ‘not relevant’ to the present matter on the basis of its reference to non-existent paragraphs of the Tribunal’s Decision.[16] Further, the Minister submitted that there was no issue as to the Applicant’s identity, which was accepted as claimed.[17]

    [16] Written Submissions of the First Respondent (Minister’s Submissions), [15]; Transcript P5:L9-13.

    [17] Minister’s Submissions, [15]; Transcript P5:L13; CB 78, [14].

27. The Minister submitted that all material considered by the Tribunal, including the Visa Application, the Delegate’s Decision, and the Applicant’s evidence at the Tribunal Hearing, were relevant matters for the Tribunal’s consideration of the matter.[18]

    [18] Minister’s Submissions, [16]; Transcript P5:L15-18.

28. The Applicant’s evidence at the Tribunal Hearing, as it related to her protection claims having been contrived by a third person and that she in fact did not fear harm in Malaysia, was submitted by the Minister to have reasonably led the Tribunal to make the decision that it did.[19]

    [19] Minister’s Submissions, [16].

29. I do not consider that the Ground of Review in the Application identified any jurisdictional error within the Tribunal’s Decision. Further, I do not consider that the erroneous reference in paragraphs [30] and [32] of the Tribunal’s Decision amounts to a jurisdictional error.

    CONCLUSION

30. The Application failed to identify a jurisdictional error in the Tribunal’s Decision and therefore must be dismissed.

31. At the Hearing, the Minister sought costs fixed in the amount of $5,000.[20] The Court notes that this amount is less than the current scale amount as set out in item 3, Division 1, Part 2, Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, I will make an Order that the Applicant pay the Minister’s costs in the sum of $5,000.

    [20] Transcript P6:L1.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC.

Associate:

Dated:       13 December 2023