CEV18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 629
•17 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CEV18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 629
File number(s): MLG 1154 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 17 July 2024 Catchwords: MIGRATION – protection visa – application for review of decision of the Administrative Appeals Tribunal – where applicant contended the Tribunal erred in its reliance on facts from an internet source and otherwise invited the Court to engage in impermissible merits review – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act1958 (Cth) ss. 36, 65, 474, 476. Cases cited: BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
Craig v South Australia [1995] HCA 58
Minister for Immigration and Citizenship v SZNCR [2011] FCA 369
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of hearing: 10 July 2024 Place: Melbourne The Applicant: Appearing in Person Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1154 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CEV18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
17 JULY 2024
THE COURT ORDERS THAT:
1.The application filed 1 May 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
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
JUDGE MANSINI
The Applicant is a citizen of Malaysia who sought protection in Australia on the basis of claims to fear harm from her family due to her marital circumstances.
The Applicant now seeks judicial review of a tribunal decision to affirm an administrative decision to refuse her a protection visa.
For the reasons that follow, the application must be dismissed.
CONTEXT
On 20 November 2015, the Applicant arrived in Australia on a subclass 601 (tourist) visa.
On 22 January 2016, the Applicant applied for a protection (class XA) visa, which was refused by a delegate of the First Respondent on 22 March 2016.
On 22 March 2016, the Applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision. In the course of that review, the Applicant attended two hearings before the Tribunal, with the assistance of an interpreter on both occasions.
On 18 April 2018, the Tribunal decided to affirm the delegate’s refusal decision and provided the Applicant with written reasons for the decision.
APPLICATION BEFORE THIS COURT
On 1 May 2018, this application for judicial review was filed with a short accompanying affidavit. By the initiating application, the Applicant identified 5 points under the heading “grounds of application” in the following terms:
1.I came to Australia for visitor visa purpose and applied for protection visa
2.If I return to Malaysia the gangster blackmail my husband can find me and my family and them will kill my husband and do something to my baby.
3.I giving birth at Australia October last year this situation make me worried if I return to my country
4.The Member did not make proper assessment and consideration and did not make a decission according to the actual situation of (Applicant).
5.The Member has made the decission based on the facts finding from the internet source which is not current and relevent
(sic.)
The Applicant also articulated the following 3 points under the heading “final orders sought by applicant/s”:
1.I am not really focus to remember thing happen during hearing session
2.I got nervous to answer the question during hearing session
3.I am not ready to return on my country because it was unsafe situation for me and my family.
(sic.)
On 14 May 2018, a response was filed on behalf of the First Respondent by which it contended that the decision of the Tribunal was not affected by jurisdictional error.
Various procedural orders were then made. Most recently, orders made by the Court on 1 May 2024 directed the Applicant to file and serve any amended application with proper particulars of the grounds of the application, an outline of written submissions and any additional evidence on which she sought to rely by 4.00pm on 19 June 2024. The Applicant did not file and serve any further materials in accordance with the 1 May 2024 orders or at all.
The First Respondent filed and served on the Applicant an outline of submissions and a court book of relevant documents.
The matter proceeded to final hearing before the Court as presently constituted on 10 July 2024. The Applicant appeared in person and the First Respondent was represented by a solicitor. At the outset of the hearing, the process and role of the Court was explained to the Applicant, with the assistance of a Malay interpreter. It was explained to the Applicant that she would be given the opportunity to make oral submissions at the hearing, and she elected to do so (as outlined below).
This application was heard concurrently with another application for judicial review lodged by the Applicant’s husband. The originating materials are essentially the same and the cases bear a number of factual and legal similarities but nonetheless are separate and distinct applications for judicial review of separate and distinct Tribunal decisions in relation to separate and distinct visa applications. Accordingly, the reasons in each application are prepared separately.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s.474 of the Migration Act1958 (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 Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers 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: see Craig v South Australia [1995] HCA 58 as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20].
The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provide (and, at the relevant times, provided) that “a” criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) 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.
An administrative decision-maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
CONSIDERATION
Grounds numbered 1, 2, 3 and point 3 of the orders
Points 1, 2 and 3 of the grounds of the application to this Court and point 3 of the orders sought do not raise grounds of jurisdictional error and are properly characterised as an invitation to the Court to redetermine the application before the Tribunal on its merits. As was explained to the Applicant at the hearing, to do so would be beyond the power or scope of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [31].
Point numbered 1 and 2 of the orders
Points numbered 1 and 2 of the orders sought were understood to relate to whether the Applicant was afforded proper opportunity to present her case and participate in the hearings before the Tribunal. The Court was taken to a decision in Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 where, at [30], it was held that to succeed in such a claim that they were denied a real and meaningful opportunity to participate before the Tribunal, the applicant must demonstrate that they were unfit in the sense of being unable to give evidence, present arguments and answer questions in the course of the hearing. There was no such evidence of physical or mental incapacity before the Court and no basis on the materials to find an error in the procedure or approach adopted by the Tribunal in this respect.
Grounds numbered 4 and 5
Points 4 and 5 of the grounds of the application alleged error in the Tribunal’s assessment and consideration of the Applicant’s claims and in its reliance on facts from an internet source.
The Applicant did not identify any particular error in the approach taken by the Tribunal or any particular paragraphs of the decision said to be infected by reliance on an incorrect internet source or a mistaken fact.
At the hearing, the Applicant was taken to a direct citation of an internet source which appears at paragraph [59] of the Tribunal’s reasons. There, the Tribunal found:
The administration of marriage for Muslims in the Federal Territories (applicable to ‘Kuala Lumpur’ and ‘Labuan’) is sanctioned by Act of 303 Islamic Family Law (Federal Territories) Act 1984. Marriage in Islam is regulated by the Syariah Laws.
(with footnotes referring to sources of legislation and an internet link)
In response, the Applicant confirmed that the footnote reference to an internet source was subject of her grounds for review. She otherwise made a generalised contention that the Tribunal’s findings were based on information from the internet which was not the same as the reality.
Turning then to the Tribunal’s reasons.
The Tribunal’s reasons disclose that it accepted the Applicant’s claim that she was faced with personal problems while in Malaysia in so far as it concerned her relationship with her husband (at the relevant time, when in Malaysia, he was her boyfriend) and her family because they disapproved of their relationship and because the Applicant’s family had their own-choice candidate for the Applicant to marry. The Tribunal also accepted that, because of the Applicant’s relationship with her husband, her husband has had a difficult relationship with his parents. Further, it was accepted that since their arrival in Australia the Applicant and her husband were now parents of a child and the evidence of the Applicant and her husband that they were legally married and should be considered a married couple and would be considered legally married in accordance with Syariah law as it applied in Malaysia and in their particular state: at [60] and [62] of the reasons.
Notwithstanding its acceptance of those claims, the Tribunal expressly considered the Applicant’s version of events as submitted at the hearing before it as raising issues adverse to her credit: at [60] of the reasons. Important aspects of the Tribunal’s reasons reflected that it did so by reference to country information and sources of information about the local laws that were before it. In particular:
(a)Contrary to her claims, the Tribunal found that the Applicant and her husband would encounter no issues in seeking to register their marriage if they wished to do so upon return from Malaysia in the future: at [62] of the reasons;
(b)In relation to the Applicant’s claims to fear harm from her family (including that harm would be directed at their infant child), the Tribunal accepted that she, her husband and child could face familial threats but rejected these claims by reference to country information that adequate state protection would be available: at [63]-[65] of the reasons; and
(c)The Tribunal rejected the Applicant’s claims that she and her husband would face state and religious disapproval and discrimination on account of a lack of evidence and an inability to find references in any holy text or Syariah law: at [66] of the reasons.
To the extent that the Applicant sought to contend that there was an error in or misapplication of the country information or sources of legal information before it, that claim was not developed before the Court and there is no sound basis to make any such finding. The Tribunal gave logical reasons for its rejection of the Applicant’s claims and those findings were open for the Tribunal to make on the materials before it. There is no discernible jurisdictional error in this respect.
Additional point raised at hearing
When invited to elaborate on her grounds of review at the hearing, the Applicant articulated an additional point that may be summarised as: the Applicant’s child did not have the father’s name registered on the birth certificate because this is not allowed pursuant to Syariah law, which problem was described to the Court as the embarrassment and shame it would cause for the child and the family.
The Applicant conceded that this was not a claim or a matter in evidence before the Tribunal. There can be no error where the claim was not put to the Tribunal for its consideration. For completeness, I have turned my mind to whether an opportunity to do so was appropriately afforded. On careful review of the Tribunal’s reasons, it is apparent from the written reasons that the Tribunal had invited the Applicant to give evidence about issues concerning her relationship with her husband and her family, and invited the Applicant’s husband to explain the difficulties that he had claimed that he and the Applicant would experience in relocating to another part of Malaysia to escape his parents’ disapproval – to which he replied with evidence about their child. There is no basis to find that the Tribunal overlooked evidence that was before it or any apparent denial of procedural fairness in this respect.
RESOLUTION
For the above reasons, the application does not establish any error of jurisdiction and must be dismissed with costs fixed in the amount of $6,000.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 17 July 2024
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