CCG18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 521

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CCG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 521

File number:	MLG 1093 of 2018
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	11 June 2024
Catchwords:	MIGRATION LAW – application for judicial review – decision of Administrative Appeals Tribunal – protection (subclass 866) visa – no jurisdictional error – application dismissed with costs.
Legislation:	Migration Act 1958 (Cth), ss 36(2) and 46(2)(a)
Division:	Division 2 General Federal Law
Number of paragraphs:	56
Date of last submissions:	1 May 2024
Date of hearing:	1 May 2024
Place:	Melbourne
The Applicant:	The applicant appeared in person
Solicitor for the First Respondent:	Ms J Birman of Australian Government Solicitor
Solicitor for the Second Respondent:	Submitting appearance, save as to costs

ORDERS

MLG 1093 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CCG18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	11 JUNE 2024

THE COURT ORDERS THAT:

1.The applicant’s application be dismissed.

2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

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

DEPUTY CHIEF JUDGE MERCURI:

INTRODUCTION

1. Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 21 March 2018.  By its decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) not to grant the applicant a protection (subclass 866) visa (‘protection visa’).

2. The applicant was not legally represented at the hearing before me.  She was assisted at the hearing by a Malay interpreter.

   BACKGROUND

3. The applicant is a Malaysian citizen of Chinese ethnicity and identifies as a Muslim.[1]  She arrived in Australia on 6 January 2016 as the holder of an Electronic Travel Authority visa.[2]

   [1] Court book at pages 13 and 15.

   [2] Court book at pages 20, 22 and 99.

   First application for protection visa on 23 September 2016

4. On 23 September 2016, the applicant applied for a protection visa (‘first application’).[3]

   [3] Court book at pages 12 to 49.

5. In the first application, the applicant, in response to a question as to why she left Malaysia, said:

   It’s because I got a massive problem with my pervious cruel group. There is a lot of people especially Chinese joined the traid. Traid it’s not only one in Malaysia. There is a lot of group. Most of them joined because to make a lot of members who can protect us other words its like find a influence. I joined the group after I finished my high school. I was forced to. I did a mistake because I thought I could left the group after done. But it is not happened. When you joind (sic) the there is no way out. I choose to get out from this group because I started to think about my future, my family, our safety. If I just remain in the group, surely I won’t and I can’t get a proper life and the most bad will be, I can’t help my family. Start from the point, I not just threaten, they beat me, my life was disturbing by them until I felt my life was like meaningless in my country and I make moved to here. Hopefully they will stop finding me after I ran away for a certain time.

6. The applicant further stated that she feared harm if she were to return to Malaysia, and said that she had been beaten, disturbed at her workplace and blackmailed.[4]  

   [4] Court book at page 32.

7. On 18 November 2016, the applicant was advised by the Department of Immigration and Border Protection (‘the Department’) that the first application was invalid as it did not meet the requirements of section 46(2A) of the Migration Act 1958 (Cth) (‘the Act’).[5]

   [5] Court book at pages 51 to 53.

   Second application for protection visa on 21 December 2016

8. The applicant subsequently filed a further application for a protection visa on 21 December 2016 (‘second application’).[6]

   [6] Court book at pages 54 to 93.

9. In her second application, the applicant set out different reasons for leaving Malaysia.  Relevantly, the applicant stated the following as to why she left Malaysia:[7]

   This is because the bad economy situation in my country. I have a lot of monthly commitments to be solved. The cost of living has increased. Prices of consumer goods also rose. I used to have a gadget business but then I have to closed down the business due to economy (sic) effect. Later then, I got a job, I worked but my monthly income is very low. Expenditure in terms of home, spending for groceries, utilities and other bills that are exceeded my monthly income. Due to cost of living pressures, I almost wanted to borrow money from loan sharks. I rethink and cancel what I thought to do, I didn’t want to take risks by borrow the moey (sic) from loan sharks. Me and my family are facing difficulties due to the high living costs. Whether in a city or village, we are burdened with the economic situation. I was no longer able to save money since every goods prices increased. My family and I often argue when it comes to money management because the economy is too bad. I decided to go abroad in search of better opportunities. I spend all my savings to come and survive in Australia. I want to start a new life and build a future in Australia. I want to help my family. My family put their hopes on me and I do not want to disappoint them. Since I am already here I do not want to be illegitimate residents in the country. I want to stay and work legally here. I’m willing to pay taxes if necessary. I understand and know that I must abide by the laws here.

   [7] Court book at page 87.

10. In response to a question in the second application as to what she feared would happen if she were to return to Malaysia, the applicant said “I won’t be able to help myself and my family.  My life will back with mess and problems.  Things will get worse, I will disappoint my family”.[8]

    [8] Court book at page 87.

11. On 22 March 2017, the delegate notified the applicant that her application for a protection visa had been refused.[9] 

    [9] Court book at page 95.

    Application for review by the Tribunal on 17 April 2017

12. On 17 April 2017, the applicant sought a review of the delegate’s decision in the Tribunal.[10]  

    [10] Court book at pages 109 to 110.

13. By letter dated 19 September 2017, the applicant was invited to attend a hearing before the Tribunal, scheduled for 24 October 2017.[11]  Annexed to the hearing invitation letter was a ‘Response to hearing invitation – MR Division’ form.  Although it does not appear that the applicant completed the response form, the Tribunal hearing record indicates that the hearing did proceed on the scheduled date and the applicant was in attendance.[12]

    [11] Court book at page 119.

    [12] Court book at pages 124 to 126.

14. At the hearing before the Tribunal, the applicant provided a copy of a birth certificate, which is somewhat illegible and has not been translated to English.[13]  In the Tribunal’s decision, it confirmed that the birth certificate was that of the applicant’s daughter.[14]

    [13] Court book at page 127.

    [14] Tribunal decision record dated 21 March 2018 at paragraph [13].

15. On 23 March 2018, the Tribunal notified the applicant of its decision dated 21 March 2018, to affirm the delegate’s decision.

    TRIBUNAL’S REASONS

16. The Tribunal’s decision record is set out at pages 131 to 148 of the court book.

17. In its reasons, the Tribunal provided brief background to the matter at paragraphs [1] and [2], before going on to set out the criteria for a protection visa at paragraphs [3] to [7].  The Tribunal made the following statement, seemingly by mistake, at paragraph [9]:

    For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

18. It is clear from the balance of the Tribunal’s reasons that the Tribunal found that the applicant did not satisfy the criteria for a protection visa and that Australia’s complementary protection obligations were not engaged and on this basis, the applicant’s application for a visa was rejected.

19. The Tribunal summarised the applicant’s protection claims, both as set out in the first application and in the second application, as well as those advanced before the Tribunal.[15]  This included that the applicant had a daughter born in 2013 who was being raised by the applicant’s mother in Malaysia.  The applicant said that the child’s father had abandoned her and the child after finding out the applicant was pregnant. 

    [15] Tribunal decision record dated 21 March 2018 at paragraphs [10] to [13].

20. At paragraphs [15] to [30], the Tribunal set out country information relevant to the applicant’s various claims. 

21. Notably, the Tribunal expressed concern for the applicant’s credibility ‘in terms of the numbers of different claims she lodged over time’ which led the Tribunal to be ‘unsatisfied about the majority of her claims, particularly when some of these claims are clearly incongruous with the country information put to her at hearing’.[16]

    [16] Tribunal decision record dated 21 March 2018 at paragraph [35].

22. Relevantly, the Tribunal went on to observe:

    [36]As can be seen from her previous claims, the claims she put forward at hearing deviated somewhat from the second set of claims she made to the Department, and considerably from the initial set of claims.  The applicant stated that her migration agent had told her to cancel the first application and to lodge another; a second application which is the subject of this review.  The Tribunal asked the applicant which set of claims it should accept and she stated that all of them were true.  Having regard to the evidence as a whole and after all her claims have been assessed by the Tribunal, the Tribunal accepts that the applicant:

    ·is a single mother from Ipoh, Perak and has a daughter born in 2013; and

    ·she comes from a disadvantaged household.

    [37]Significantly, however, the applicant made no mention of triad gangs or of being afraid made no mention of triad gangs or of being afraid for her safety due to fearing serious harm at the hands of triad gangs until she was prompted by the Tribunal.  Her testimony at hearing, despite the Tribunal encouraging the applicant to be clear about who she feared, omitted any reference to gangs and any role she may have played in them.  Her claims at hearing, generally were about her fear that her child would be taken from her by the Welfare Department if she were not able to make a living, as nobody and no agency would assist her due to her Chinese ethnicity.

23. The Tribunal considered each of the applicant’s protection claims including as they related to triad gangs, her Chinese ethnicity, the poor economic situation in Malaysia, and her status as a single mother without a High School certificate. Ultimately, the Tribunal did not consider any of the applicant’s claims to provide a basis upon which to satisfy the refugee or complementary protection criteria in sections 36(2)(a) and (aa) of the Act.

    PROCEEDINGS IN THIS COURT

24. On 26 April 2018, the applicant filed an application for judicial review of the Tribunal’s decision in this court.

25. In her application, the applicant raises the following grounds of review:

    The Tribunal make decision on 21/03/2018 without looking the evidance (sic) same like when applicant in oral interview, Tribunal totally like not understand what I feel like and the interpreter not good tranlater (sic)

    Because when I explain to Tribunal the interpreter did not do very well in right dialect.

26. The applicant did not file any amended application, notwithstanding orders made by Registrar Luxton on 15 May 2019 permitting her to do so.

27. The hearing in this matter was originally listed on 13 February 2024. Although the applicant appeared in person and a solicitor for the Minister appeared on that date, a Malay interpreter unfortunately did not attend. As such, the hearing was adjourned to 1 May 2024.

    Hearing on 1 May 2024

28. As stated, at the hearing on 1 May 2024, the applicant appeared in person and was assisted by a Malay interpreter.  I explained the nature of the proceedings and the court’s role and powers in a judicial review application before inviting the applicant to make submissions in support of her application.

29. Although her application referred to problems with an interpreter before the Tribunal, the applicant stated that she was in fact not assisted by an interpreter in the Tribunal hearing.  When asked about the grounds of review in her application, the applicant said that a friend had written her application for judicial review and that it was ‘not correct’.

30. Without in any way being critical of the applicant who was not legally represented before the court, she did not readily identify what she said were the jurisdictional errors made by the Tribunal.  When the applicant was asked to identify the error or mistake made by the Tribunal, the applicant stated that:

    (a)she cannot return to Malaysia as she would not be accepted there;

    (b)if she returned to Malaysia, her mother has said that she (the applicant’s mother) will place the applicant’s child into an orphanage; and

    (c)the Tribunal stated in its reasons that the applicant’s child’s birth certificate contained the name of the child’s father whereas it does not, although the applicant conceded that she had not provide a translated version of the birth certificate to the Tribunal nor the court, stating that she was not aware this was required.

31. In response, the Minister’s representative noted that there was no evidence before the court to indicate that the applicant requested an interpreter at any stage before the Tribunal hearing, or indeed that she needed one. 

32. The Minister referred to the fact that the applicant did not indicate that she required an interpreter at any stage in this application process.  In her first and second applications, the applicant stated that she had not been assisted in the preparation of her applications by an interpreter or by any other person.[17]  Similarly, in her application for review to the Tribunal, the applicant indicated in response to a question as to whether she required an interpreter, that she did not.[18] 

    [17] Court book at pages 36 and 91.

    [18] Court book at page 109.

33. When the applicant was invited to attend a hearing before the Tribunal, the applicant was invited to complete and return a response to hearing invitation form which, among other things, asked whether she (or any other person who would participate in the hearing) required an interpreter.  It is not clear whether the applicant completed this form, but she was given the opportunity to do so.  Ultimately, the Tribunal hearing record indicates that the applicant was not assisted by an interpreter.

34. I also note for completeness that the letter inviting the applicant to attend a hearing dated 19 September 2017, also contained the following:[19]

    … Any documents or written arguments sent to us should be in English or be translated by a NAATI accredited translator. 

    [19] Court book at page 119.

35. At paragraph [38] of the Tribunal’s decision record, in the context of addressing the triad claims made by the applicant, the Tribunal said:

    At the end of the hearing the Tribunal stated that if she was claiming that those initial claims about the gangs were genuine then she needed to advise the Tribunal about those events at the hearing also.  The applicant expressed dissatisfaction with the woman who had assisted put her claims together.  She stated that she had followed her advice even though the Tribunal notes that the applicant’s English is well above basic, and that the applicant would have seen and understood her initial claims in writing.  The Tribunal considers that had been genuine she would have continued to pursue these, rather than change them at hearing. 

36. In reply, the applicant stated that she was not aware that she was able to request an interpreter before the Tribunal.  Moreover, the applicant said that notwithstanding the Tribunal’s assessment of her language proficiency, whilst she can understand some English, it is ‘not really very good’.

37. In so far as the applicant made claims about her child potentially being taken into care, the Minister submitted that the Tribunal considered but rejected this claim in its reasons.  In reply, by way of clarification, the applicant said that her mother had threatened to place the applicant’s child in an orphanage if the applicant returned to Malaysia, not that the authorities would take the child into care.  The applicant said that it was not within her power to stop this.

    GROUNDS OF REVIEW

38. I will now turn to the applicant’s grounds of review.

39. As stated in her application filed on 26 April 2018, the applicant asserted that:

    (a)the Tribunal did not consider the evidence she put forward, including her oral evidence at the Tribunal hearing; and

    (b)the Tribunal did not understand what she was saying as the interpreter was not a good translator and the interpreter did not interpret in the correct dialect.

40. As to the second aspect of this ground, the applicant confirmed that she did not have an interpreter before the Tribunal.

41. With regard to the first aspect, it is apparent from a fair reading of the Tribunal’s reasons that the Tribunal understood the applicant’s claims and considered each of them, including by reference to country information. 

42. The grounds of review as contained in the applicant’s application do not disclose any jurisdictional error.

43. To the extent that the applicant’s grounds of review could be considered to be a claim that the Tribunal did not afford the applicant procedural fairness, this is not made out.  It is apparent that the applicant was given an opportunity to attend a hearing before the Tribunal to put evidence and arguments.  It is also apparent from a review of the applications filed in this matter by the applicant and other documents referred to earlier in these reasons, that at no stage did the applicant suggest that she required an interpreter or request an interpreter.  Moreover, the Tribunal itself records that the applicant’s English was ‘well above basic’.[20] 

    [20] Tribunal decision record dated 21 March 2018 at paragraph [38].

44. In addition, it is apparent from the Tribunal’s reasons that the Tribunal was able to understand the applicant’s claims and was able to engage with the applicant about her claims to test them, and to provide the applicant with an opportunity to clarify any issues.  This is evident from the applicant’s evidence given in the hearing which is recorded throughout the Tribunal’s reasons. 

45. Save for the issue of the applicant’s daughter’s birth certificate, the applicant has not pointed to any evidence she gave during the Tribunal hearing and recorded in the Tribunal’s reasons which she says is inaccurate. 

46. I accept that the applicant asserts that the Tribunal was incorrect in stating at paragraph [13] of its decision record that the applicant’s daughter’s father had abandoned her and her daughter upon learning that the applicant was pregnant but that his name was on the daughter's birth certificate.  The applicant says that where information is sought about the father, the birth certificate simply says ‘no information’.  There are two responses to this.  First, the applicant was informed that if she wished to put any documents before the Tribunal, they either had to be in the English language or needed to be accompanied by a translation.  Second, the applicant provided a copy of her daughter’s birth certificate to the Tribunal member at the hearing without a translation.  There is no evidence before this court to establish that what the applicant says appears on the birth certificate is in fact the case.

1. In any event, nothing turns on whether the applicant’s daughter’s birth certificate contains details of the father or not.  This is because the applicant did not claim to fear harm due to the father’s name not appearing on her daughter’s birth certificate.  Moreover, the Tribunal accepted that the applicant was a ‘single mother’ and had a daughter born in 2013.   The Tribunal then went on to consider whether the applicant either met the refugee criteria or engaged Australia’s complementary protection obligations, as a result of belonging to a particular social group, namely a Chinese single mother without a high school certificate.[21]  For the reasons there given, it concluded she did not.

   [21] Tribunal decision record dated 21 March 2018 at paragraphs [59] to [67].

2. Therefore, nothing of substance turned on whether the applicant’s daughter’s father was recognised on the birth certificate or not.

3. This does not disclose any jurisdictional error.

4. In relation to the applicant’s submission in the course of the hearing before me that her mother (who has the care of her child) has told her that if she returns to Malaysia, she will have the child put into an orphanage:

   (a)first, I note that this is not a claim that the applicant made in either the first or second application; and

   (b)second, the Tribunal noted the following evidence given by the applicant before it:[22]

   (i)her child was living with the applicant’s mother;

   (ii)her mother currently works as a nanny but is now 60 years of age and is likely to reduce the amount she works;

   (iii)she had concerns that the welfare department would take her child from her although she ultimately conceded after questioned by the Tribunal that the child would not be forcibly removed from her, but she would have to give up the child if she could not rear her; and

   (iv)she wanted the best for her daughter and that if she could not provide for her financially her daughter would not be able to get an education.

   [22] See Tribunal decision record dated 21 March 2018 at paragraph [13].

5. Notwithstanding the fact that this particular aspect of her claim was not expressly raised, the Tribunal did consider the risk to the applicant’s daughter and the supports available to her in Malaysia as a single mother.  For example, at paragraph [21] the Tribunal said:

   As put to the applicant at hearing the country information indicated that there were programmes and assistance for single women and there was no indication that not being affluent meant that children were removed from their mothers in Malaysia or that children of single mothers could not attend school.

6. The Tribunal then went on to summarise some of the initiatives in Malaysia aimed at supporting single mothers at paragraphs [22] to [27]. 

7. At paragraphs [50] to [58] the Tribunal considered the risk of harm to the applicant arising from the poor economic situation in Malaysia.  In this context, the Tribunal said:

   [51]The Tribunal accepts that the applicant is a single mother and that she may not have held lucrative work in the past because of the poor level of her education, …

   [52]However, the country information demonstrates that the economy is growing … The applicant speaks English very well and based on the country information, the Tribunal can see no reason why the applicant would not find employment in a large city such as Kuala Lumpur, where speaking English in some sectors would be a significant advantage to her …

   …

   [54]As such, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm by way of economic hardship that threatens her and her child’s capacity to subsist … were she to return to Malaysia, now or in the reasonably foreseeable future …

   [55]While the Tribunal accepts that the applicant may have come from a disadvantaged family it does not accept that she was or would be living in extreme poverty in Malaysia.  The fact that she and her mother have travelled to Singapore and Australia previously would indicate that they had mobility and her family was resourceful in attaining work. 

8. The Tribunal has clearly considered the risk of harm to the applicant, and by reference to her daughter, if she were to return to Malaysia.  No error is apparent from the manner in which the Tribunal has done so.

   CONCLUSION

9. For each of these reasons, the applicant has not established any jurisdictional error by the Tribunal.  The applicant’s application ought be dismissed with costs.

10. I therefore make the orders set out at the commencement of these written reasons.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Associate:

Dated:       11 June 2024