Cey18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 69
•1 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CEY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 69
File number(s): MLG 1155 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 1 February 2024 Catchwords: MIGRATION – application for judicial review – Protection (Class XA) (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that applicants were not persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 – where grounds for review merely restate the applicants’ claims to fear harm on the basis of their inter-faith marriage. Legislation: Migration Act 1958 (Cth) Pt 7, Div 4, ss 36(2)(a)(aa), 36(2)(b)(c), 424A, 425, 425A, 474, 476. Cases cited: Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 24 January 2024 Place: Melbourne Solicitor for the Applicants: Self-represented litigants Solicitor for the First Respondent: Mr Orchard of Sparke Helmore ORDERS
MLG 1155 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CEY18
First Applicant
CEX18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
1 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application filed on 1 May 2018 be dismissed.
2.The Applicants pay the First Respondent’s costs fixed in the amount 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
JUDGE J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 1 May 2018, in which the applicants seek judicial review of a decision of the second respondent (Tribunal) dated 6 April 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicants a Protection (Class XA) (subclass 866) visa (Visa).
CONTEXT
The first and second applicant are husband and wife, respectively, and both are citizens of Malaysia.
On 11 December 2014 the first applicant entered into Australia on an Electronic Travel Authority (subclass 601) (ETA). On 24 April 2015 the second applicant entered into Australia also on an ETA.
On 23 February 2016 the applicants applied for the Visa on the basis that they claimed to fear harm due to their inter-faith marriage. Relevantly, the applicants claimed in their Visa application that:
(1)they are married and their marriage is not sanctioned by their families as the first applicant is a Muslim and the second applicant is a Christian. The applicants were getting pressure from their families and were “driven by the family” because they want to keep the marriage;
(2)they have nowhere to go in Malaysia as they are considered “illegally married” as they are from different religions and cannot live together from different religions;
(3)the first applicant is considering converting from Islam to Christianity. The first applicant told his family that he wanted to convert and they will not accept it and he fears that he will be hunted down by the Islamic Religious Department;
(4)they may be condemned by the Muslim community according to Islamic law. Those who convert to other religions will be sentenced to death and imprisoned in accordance with the law of Islam;
(5)in Malaysia, the law of Islam will never give protection to those Muslims who convert to another religion. The death penalty will be imposed according to the Islamic law; and
(6)the second applicant does not want to convert to Islam and followed the first applicant to Australia because she was not accepted by her family and their relationship was opposed by their family.
On 1 August 2016 the Delegate refused to grant the applicants the Visa. The Delegate found that, on the limited information before them, they were not satisfied that the first applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act). As the Delegate refused to grant the Visa to the first applicant, they found that the second applicant did not meet the criteria under s 36(2)(b) or (c) of the Act as a member of the same family unit.
On 16 August 2016, the applicants applied to the Tribunal for review of the Delegate’s decision. In their application for review, the applicants nominated the email address <[email protected]> (first applicant’s email address) for correspondence and provided the mobile number “xxxxx xxx54”.
On 23 August 2016 the applicants provided the Tribunal with a range of documents in Malay. On 24 August 2016, the Tribunal emailed the first applicant informing him that the Tribunal does not arrange for documents to be translated, and if he would like the Tribunal to consider the information, he was requested to provide a translated copy of the documents.
On 27 September 2017, the Tribunal emailed the applicants inviting the applicants to attend an in-person hearing on 8 November 2017.
On 7 November 2017, the first applicant emailed the Tribunal requesting an adjournment and attached a medical certificate dated 7 November 2017. The applicant stated that his reason for seeking an adjournment was due to his “bad health condition”.
On 15 November 2017, the Tribunal approved the applicant’s request for an adjournment and invited the applicants to attend a rescheduled in-person hearing on 11 December 2017 at 9.30am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicants did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 1 December 2017 the first applicant emailed the Tribunal attaching a completed Hearing Response and a number of supporting documents under the Syariah Criminal Offences Enactment 1995 and the Islamic Family Law Act (Federal Territories) 1984.
On 11 December 2017 the applicants appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Malay and English languages.
On 18 January 2018, the Tribunal sent an invitation to the applicants pursuant to s 424A of the Act to comment on or respond to information (s 424A Letter). The s 424A Letter set out multiple inconsistences in the applicants’ evidence as to the details of their marriage, and queried whether in fact there was a marriage.
On 29 January 2018, the applicants provided the Tribunal with a response to the s 424A Letter. In their response, the applicants explained that the inconsistencies in their evidence can be explained by issues they had with the interpreter provided at the hearing. In their response to the Tribunal’s question as to whether they are actually married, the applicants provided the following information (without amendment):
I tried to answer that we try to register our marriage and get the certificate in one of church located in borneo malaysia but the certificate cant be use and its not accepted because im still muslim. At the same time we plan to get married in singapore and lives there but singapore too close to malaysia and our parents might be easily to find us.
The applicants s 424A response failed to answer the Tribunal’s question as to whether they are actually married.
On 6 April 2018 the Tribunal affirmed the decision of the Delegate not to grant the applicants the Visa. On 9 April 2018, the Tribunal sent a copy of its decision and reasons to the first applicant’s email address.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 6 April 2018 (Tribunal Decision).
At paragraph [10] of the Tribunal Decision, the Tribunal summarised the applicants’ claims.
At paragraphs [14] – [22] of the Tribunal Decision, the Tribunal made a number of adverse credibility findings about the first applicant based on inconsistent oral evidence. At paragraph’s [18] – [19], the Tribunal found the first applicant’s oral evidence that his parents did not know he was married and that he had not yet told his parents of his intention to convert to Christianity contradicted his written evidence to the Department that he had fled Malaysia as his family did not sanction his marriage and he had told them he was considering converting. At paragraph [20], the Tribunal found the first applicant’s evidence about his intention to convert to Christianity was “vague and non-substantive”. At paragraph [21], the Tribunal found that if the first applicant was pressured and driven by his family to stop his relationship and seek protection in Australia, he would not have taken a holiday to Thailand during the midst of all the pressure and fear in November 2014 prior to coming to Australia. Further, at paragraph [21], the Tribunal found it “concerning” that the applicants had waited until 23 February 2016 to apply for protection, over a year after arriving in Australia, and found that if they were fearful, the applicants would have sought immediate protection.
At paragraphs [23] – [28] of the Tribunal Decision, the Tribunal made a number of adverse credibility findings about the first and second applicant based on inconsistent oral evidence given about their marriage. Both the first and second applicant were unable to identify a consistent date or location at which they were married, neither could produce a certificate of marriage and both conceded they were not legally married despite telling the Department and Tribunal they were.
At paragraphs [29] – [34] of the Tribunal Decision, the Tribunal rejected the applicants’ response to the s 424A Letter in which they claimed that they had an issue with the interpreter, or that they could not understand the interpreter, as they were given ample opportunity to let the Tribunal know if they were having difficulty in understanding the interpreter or if they objected to the use of that particular interpreter.
Consequently, at paragraph [34] of the Tribunal’s Decision, the Tribunal found that the applicants were not married, did not accept that the first applicant intends to convert to Christianity and did not accept that the first applicant told his mother that he was thinking of converting. Further, the Tribunal found that the applicants have not told their parents they are in a relationship.
Accordingly, the Tribunal was not satisfied that there was a real chance that the applicants would suffer serious harm or a real risk that they would suffer significant harm on return to Malaysia and found that they did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.
APPLICATION FOR JUDICIAL REVIEW
The applicants applied for judicial review of the Tribunal’s Decision on 1 May 2018.
The Application contains the following grounds for judicial review (without amendment):
1.I still can prove a Muslim in Malaysia cannot stay or live together with their partner unless they register marriage in Muslim
2.There’s no way for someone who is Muslim to register their marriage with their non-Muslim partner unless their partner become Muslim
3.And as a Muslim, we cant or don’t force someone to follow us to become Muslim
4.As a Muslim, we cant leave this religion to join other religion in any Muslim country
5.There’s no civil marriage for Muslim
The applicants also filed the following documents:
(1)an affidavit on 1 May 2018 which annexed the Tribunal’s Decision;
(2)an affidavit filed on 12 December 2023 which annexed the applicants’ Marriage Certificate, issued in Australia and registered on 27 July 2018, a birth certificate of the applicants child born 2019 and a signed Certificate of Marriage (collectively, Documents).
The Minister filed a Response on 15 June 2018. The Response contained the following grounds:
1.The application for judicial review does not provide any particulars or any legal ground of review.
2.The application invites the Court to undertake a review of the merits of the Tribunal’s decision. To engage in fact finding about the merits of the applicant’s case is no part of the function of the Court: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v MIMIA [2004] FCAFC at [10].
3.The application for judicial review does not establish any jurisdictional error in the decision of the Administrative Appeals Tribunal dated 6 April 2018.
4.The application for judicial review does not raise any arguable case for the relief claimed and should accordingly be dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001.
The Minister also filed the following:
(1)an affidavit filed on 17 August 2023 which annexed a letter to the applicants regarding the 24 August 2023 callover listing details; and
(2)written submissions filed on 15 December 2023.
The hearing
The hearing took place on 24 January 2024.
The applicants are self-represented and were assisted by an interpreter in the English and Malay languages at the hearing.
With the consent of the second applicant, the first applicant appeared on behalf of both applicants.
At the hearing of this matter, the applicants were invited to elaborate on the grounds for judicial review. In addition to reiterating the grounds set out in the Application, the applicants added the following:
(1)the grounds in the Application did not identify any error by the Tribunal;
(2)the applicants were not married at the time of the Tribunal hearing;
(3)the applicants are now married and due to the inter-faith nature of their marriage cannot have their marriage registered in Malaysia, live in Malaysia as a family or register their child’s birth in Malaysia.
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 at [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 at [175].
CONSIDERATION
The five grounds for judicial review do no more than restate the applicants’ claims to fear harm on the basis of their inter-faith marriage. As submitted by the Minister, the grounds do not identify any jurisdictional error on the part of the Tribunal and, at their highest, do no more than invite the Court to engage in impermissible merits review. Further, the applicants conceded at the hearing that the grounds do not allege any error by the Tribunal.
It is also clear that the Tribunal was aware of the applicants’ claims regarding marriages between Muslims and non-Muslims. At paragraph [10] of its decision, the Tribunal set out the applicants’ claims regarding this. At paragraph [33] the Tribunal acknowledged that it is a criminal offence in Malaysia for a non-Muslim to marry a Muslim and that converting to Christianity is also a criminal offence. However, on the basis of the applicants’ inconsistent evidence regarding the marriage and its registration, the Tribunal found that the applicants were not, in fact, married, that the first applicant did not intend to convert to Christianity, and that the first applicant had not informed his mother of his intention to convert (at paragraphs [33]-[34]). Those findings were open to the Tribunal on the evidence before it. Further, the applicants’ confirmed at the hearing in this Court that at the time of the Tribunal’s decision they were not married.
To the extent that grounds 1-5 express dissatisfaction with the Tribunal’s decision, the applicants seek impermissible merits review. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
To the extent that the grounds contain assertions that the applicants’ were not afforded procedural fairness, this submission must be rejected.
On 22 August 2016, the Tribunal emailed the applicants acknowledging receipt of the applicants’ application for review and invited the applicants to provide “material or written arguments”. On 23 August 2016 the applicants provided the Tribunal with several message exchange screenshots and journal articles in Malay. On 24 August 2016, the Tribunal emailed the applicants informing them that the Tribunal does not arrange for documents to be translated, and if they would like the Tribunal to consider the information, they were requested to provide a translated copy of the documents. The applicants provided a range of translated documents prior to the hearing. The Tribunal proceedings were conducted under Part 7 of the Act. Division 4 of Part 7 exhaustively codifies or confines the Tribunal’s procedural fairness obligations. The applicants were validly invited to attend a hearing before the Tribunal in accordance with ss 425 and 425A of the Act. As stated above, the applicants attended the hearing on 11 December 2017 and gave evidence with the assistance of an interpreter in the Malay and English languages. Moreover, the Tribunal also put information to the applicants in the s 424A Letter and invited them to comment on that information. The applicants provided a response to the s 424A Letter and that response was taken into consideration by the Tribunal. The s 424A Letter complied with the requirements of s 424A of the Act, and although not required to put inconsistencies to the applicants under that section, no jurisdictional error arises from the Tribunal doing so in the s 424A Letter and adopting a cautious approach: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]; SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30].
Accordingly, the Tribunal complied with the requirements of Division 4 of Part 7 of the Act. There was no failure to accord procedural fairness to the applicants.
Finally, as to the applicants’ reliance on the Documents to support their marriage and claim that they cannot live in Malaysia, the Documents post-date the Tribunal’s Decision and, therefore, were not, and could not have been, before the Tribunal. As such, they are not relevant to the task before this Court on judicial review. The fact that the applicants are now married does not disclose any error in the Tribunal’s reasoning.
Accordingly, the Application does not disclose any jurisdictional error on the Tribunal’s behalf.
DISPOSITION
For the above reasons, the Application must be dismissed.
The Minister seeks that the applicants pay its costs in the fixed amount of $5,000. I note that this is below the scale amount. Accordingly, I shall order costs as sought.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 1 February 2024
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