CHB18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 892
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CHB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 892
File number(s): MLG 1198 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 13 September 2024 Catchwords: MIGRATION - application for judicial review – Protection (subclass 866) visa - where Administrative Appeals Tribunal affirmed decision of the first respondent - whether Tribunal failed to consider whether the applicants’ families opposed their marriage because it was interfaith - where certain grounds raised by applicants seek impermissible merits review – found no jurisdictional error on behalf of the Tribunal – application dismissed. Legislation: Migration Act 1958 (Cth)ss 5J(2),5LA, 36(2)(a), 36(2)(aa), 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
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 4 September 2024 Place: Melbourne Solicitor for the Applicants: Self-represented litigants Solicitor for the First Respondent: Ms Stone of Australian Government Solicitor Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1198 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHB18
First Applicant
CHC18
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:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Application filed 4 May 2018 be dismissed.
3.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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 4 May 2018, in which the applicants seek judicial review of a decision of the second respondent (Tribunal) dated 16 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 (subclass 866) visa (Visa).
CONTEXT
The applicants are citizens of Malaysia. The applicants are married. The first applicant is the husband and the second applicant is the wife.
On 18 October 2014 the applicants entered into Australia.
On 16 February 2016, the applicants applied for the Visa. The first applicant (Applicant) advanced claims for protection in the Visa application, whilst the second applicant was included in the Visa application as a member of the Applicant’s family unit. The Applicant’s claims were set out in the Visa application. In summary, the Applicant claimed that:
(1)he cannot live in Malaysia with his partner, the second applicant, because he is Muslim and she is Christian, and they want to be together but their families do not approve;
(2)they have since married in secret and did not register the marriage in Malaysia, fleeing to Australia instead to seek a life free from stress;
(3)if they wanted to marry in Malaysia the second applicant would have to convert to Islam. He claims his partner should have the freedom to choose her religion;
(4)he does not claim that they experienced harm in Malaysia;
(5)he does not say they will be persecuted and mistreated, but believes they will “get pressure from society and the law”. They believe they may be insulted and pressured for insulting religion and religious Islamic law in Malaysia;
(6)the authorities in Malaysia could not protect them because it is the law of civil and Islamic law to convert to Islam if you want to marry a Muslim person;
(7)they did not try to relocate within Malaysia because they cannot live together or register as husband and wife until she converts to Islam. They believe they will “get stress from surrounding communities and will be hunted by the department of Islam wherever we hide”; and
(8)they believe they could relocate within Malaysia if they returned home, “but not now, we need 4 to 5 years”. They believe their families need time to “think calmly and make decisions without controlled by emotion” and hope they will change their mind and accept they are together.
In support of the Visa application, the applicants also provided evidence that on 17 January 2016, the Applicant applied for a Student (Temporary) (class TU) (Subclass 570) visa (Student Visa) and the second applicant was named as his dependent on the application. Further, the applicants provided a written statement dated 13 February 2016 which stated that the Applicant withdrew the application for the Student Visa as the applicants had been unable to afford the costs associated with applying for the Student Visa.
On 26 July 2016, the Delegate refused to grant the applicants the Visa.
On 16 August 2016, the applicants applied to the Tribunal for review of the Delegate Decision.
On 27 September 2017, the Tribunal emailed the Applicant inviting the applicants to attend an in-person hearing on 9 November 2017 at 9.30am (Hearing Invitation). 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 October 2017, the applicants provided material to the Tribunal in support of the review application, including country information relating to interfaith marriages in Malaysia.
On 9 November 2017, the applicants attended a hearing before the Tribunal and gave evidence with the assistance of an interpreter in the Malay and English languages.
Following the Tribunal hearing, on 15 November 2017 the applicants provided further material to the Tribunal in support of the review application, including: an Australian marriage certificate dated 12 November 2017; a Certificate of Islamic Marriage dated 12 November 2017; and photographs of a wedding ceremony (Post Tribunal Hearing Submission).
On 16 April 2018 the Tribunal affirmed the decision of the Delegate not to grant the applicants the Visa. On 17 April 2018, the Tribunal sent a copy of its decision and reasons to the Applicant’s email address.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 16 April 2018 (Tribunal Decision).
At paragraph [10] of the Tribunal Decision, the Tribunal summarised the applicants’ claims at the time of the Visa application.
At paragraphs [11] – [12]. the Tribunal summarised the applicants’ oral claims made at the hearing, including that:
·they were married by a religious Islamic leader in Malaysia, but they were unable to register their marriage in Malaysia and their marriage will not be recognised by the authorities or their community;
·the second applicant does not wish to convert from Christianity to Islam as is required for their marriage to be recognised;
·any children they might have will be illegitimate and will be unable to obtain an ID card and disadvantaged generally in Malaysia; and
·the second applicant’s brother will kill her and the Applicant if they return to Malaysia now or in the reasonably foreseeable future because she has married a Muslim man and her marriage is not recognised by her family, although she hopes they will come to accept her marriage slowly.
Further at paragraph [12], the Tribunal summarised the applicants’ evidence submitted after the hearing. The Tribunal noted that the Post Tribunal Hearing Submissions included:
·photo evidence of an Imam and other persons at the wedding ceremony in Australia and that the second applicant was wearing a hijab;
·the Certificate of Marriage indicated that both applicants identified their religion as being “Islam”;
·a copy of the Islamic Family (Federal Territories) Act 1984 with amendments to 1 January 2006; and
·other country information concerning the prohibition on marriage between Muslims and non-Muslims under Islamic law.
At paragraphs [13] – [36] of the Tribunal Decision, the Tribunal considered country information relating to religion and marriage in Malaysia, state level administration of Sharia laws through Islamic courts and illegitimacy of children in Malaysia.
At paragraphs [58] – [69] the Tribunal considered the second applicant’s claims that she married the Applicant without converting to Islam. The Tribunal noted that the second applicant had not provided any evidence of her Christian religion, such as a Christening certificate or evidence of her Church attendance. The Tribunal was prepared to accept that the second applicant was born a Christian, but was not satisfied that she had not converted to Islam at the time she married the Applicant. This was because the applicants gave oral evidence that they had been married by an Imam in Malaysia, and the Tribunal was not satisfied that this would have been possible if the second applicant was a Christian at the time. Further, the Tribunal noted that the Post-Tribunal Hearing Submission demonstrated that the applicants were married by an Imam in Australia on 12 November 2017, the marriage certificate listed the second applicant’s religion as “Islam” and the photographs of the ceremony showed her in traditional Islamic dress and wearing a hijab. At paragraph [66], the Tribunal found that the second applicant was no longer a Christian and now identifies as a Muslim and had converted to Islam in order to be able to marry the Applicant. Accordingly, at paragraph [67] the Tribunal did not accept that the applicants would be unable to register their marriage in Malaysia or that any children they might have would be illegitimate and suffer disadvantage in society.
At paragraphs [70] – [79] of the Tribunal Decision, the Tribunal considered the applicants’ claim regarding the second applicant’s brother threatening to kill her and the Applicant. The Tribunal was prepared to accept that the applicants’ families may have some opposition to the marriage and would take time to come to accept their decision to marry, and was further prepared to accept that the second applicant’s brother may have threatened to harm and kill the applicants’ as a result of their marriage. However, after considering country information, the Tribunal found that the applicants’ would have effective state protection available to them in Malaysia which would protect the applicants from any harm posed by the second applicant’s brother. Accordingly, pursuant to ss 5J(2) and 5LA of the Migration Act 1958 (Cth) (Act), the applicants did not have a well founded fear of persecution from the second applicant’s brother.
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 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 Decision on 4 May 2018.
The Application contains the following ground for judicial review (without amendment):
1.The AAT did not consider our sanctioned in Malaysia and their families opposed it due to their different religions.
2.The AAT not accepted that the case of death threats from the brother in law cause of turned out of religions originally.
3.The AAT not accepted that not authority could protect me and my wife from the law of civil and Islam.
4.The AAT not accepted my claim that I have difficulty to living in my country (Malaysia) with my case in the past or at present.
The applicants also filed an affidavit on 4 May 2018 which annexed a copy of the Tribunal Decision.
The Minister relied on their Response filed 3 July 2018 and an Outline of Submissions filed on 20 August 2024.
Hearing
The Hearing took place on 4 September 2024.
The Applicant, with the consent of the second applicant, appeared on behalf of both applicants. The Applicant was assisted by an interpreter in the Malay and English languages at the Hearing.
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
Ground 1
By Ground 1 the applicants submit that the Tribunal failed to consider that their families opposed their marriage due to their different religions.
In addition, in oral submissions the Applicant submitted that:
·the Tribunal did not appreciate that the second applicant was born a Christian and that the applicants were from different faiths;
·the marriage was not legal; and
·the Tribunal only looked at the photographs of the wedding and the marriage certificate.
For the following reasons, those submissions must be rejected.
Firstly, as set out above, the Tribunal did consider the claim that the applicants’ families opposed the marriage. At paragraph [70] of the Tribunal Decision, the Tribunal accepted that the applicants’ families may have some opposition to the marriage and would take time to come to accept their decision to marry. Further, the Tribunal accepted at paragraphs [71]-[78] that the second applicant’s brother may have threatened to harm and kill the applicants’ as a result of their marriage but was satisfied that the applicants could access effective state protection from that harm. The applicants did not advance any claims to be at risk of serious or significant harm other than in relation to the second applicant’s brother.
Secondly, the Tribunal accepted at paragraph [60] of its decision that the second applicant was born a Christian saying “For the purposes of this review the Tribunal is prepared to accept that that the second named visa applicant was born a Christian as the first named applicant highlighted that his spouses name, being “Agustinah” was a Christin name and not a Muslim name”. The Tribunal was not however satisfied that the second applicant had not converted to Islam at the time she married in Malaysia or Australia on the basis that otherwise she would not have been permitted to marry in the Islamic faith at all.
Thirdly, whilst it is correct that in forming this view, at paragraph [62] of its decision, the Tribunal:
·made reference to the photographic evidence submitted to the Tribunal, which it noted showed an Imam marrying the couple in an Islamic ceremony and the second applicant in traditional Islamic dress and wearing a hijab; and
·noted that the Certificate of Islamic Marriage states that that the second applicant’s religion is “Islam”,
it is not correct that these were the only matters considered by the Tribunal and further, the Tribunals’ findings as to this were reasonably open to it on the evidence before it.
At paragraph [61] - [63] of its decision the Tribunal said:
The Tribunal’s concerns about this matter were heightened at hearing when the parties stated that they had been married by the equivalent of an Imam in Malaysia. When the Tribunal attempted to query why and how it was possible for a faith leader in the Islamic religion to marry them given the second named visa applicant was a Christian, the parties responded that the marriage was able to go ahead but that they could not register it because the applicant was a Christian. The Tribunal finds that given the parties’ claims, and the information on the Islamic law that they have provided, it is implausible that a person invested with the power to conduct marriage ceremonies in the Islamic faith, would have married the parties when it is clearly against the law. This incongruence in the evidence led to the Tribunal having serious doubts regarding the parties’ account at hearing that the applicants had an Islamic marriage on the basis that the second named visa applicant was a Christian in Malaysia.
Compounding the incongruence with the applicants’ claims is that in Australia the parties were married by an Imam on 12 November 2017 after the hearing was held. The photographic evidence submitted to the Tribunal show that an Imam married the parties in an Islamic ceremony as reflected in the parties’ Certificate of Islamic Marriage. The second named visa applicant, furthermore, is in traditional Islamic dress and is wearing a hijab. The marriage certificate also states that the religion of the second named visa applicant is “Islam”.
The tribunal considers that given the second named visa applicant’s contention that she would not convert to Islam and was a practising member of the True Church of Jesus, the Tribunal is left to query why on coming to Australia where she is free to be herself and to practice her own faith she would dress, and identify as a Muslim.
Further, at paragraph [58] of its decision, the Tribunal noted that whilst it is not necessary for applicants to corroborate their claims “Nonetheless, the Tribunal would have expected that in this case it would not have been unreasonable for the applicant to provide evidence of her ever having been a Christian by way of a Christening certificate, or some third party confirmation of her religion, either in Malaysia or Australia.”. After noting that the Applicant identified the second applicant’s religion as Catholic, whereas the second applicant said she belonged to the True Jesus Church, The Tribunal concluded at paragraph [59], that “Nonetheless, the Tribunal considers it odd that that the second named visa applicant has provided little evidence to confirm that currently she is a Christina and that she has never converted to Islam”.
Accordingly, Ground 1 discloses no jurisdictional error on the Tribunal’s behalf.
Ground 2
Ground 2 is somewhat unclear. At the hearing the Applicant clarified that by Ground 2 the applicants assert that the Tribunal did not consider the applicants’ claim that the second applicant’s brother had made death threats.
That submission must be rejected.
As stated above, at paragraph [70] the Tribunal said:
The Tribunal has concerns about how genuine and abiding the parties’ fears about returning to Malaysia on this basis are, particularly as at hearing they echoed the sentiments in their application that they wanted time in Australia for their families to accept the marriage and that they would consider returning once their families came to accept things. As the Tribunal has accepted that the second-named visa applicant is from a Christian family and that the first named visa applicant is from a Muslim family, the Tribunal is prepared to accept that the parties’ families may have some opposition to the marriage and will take time to come to accept the parties’ decision to marry.
At paragraph [71] the Tribunal said:
The Tribunal is also prepared to accept that the second named visa applicant’s brother may have threatened to harm and kill the parties as a result of their union.
At paragraph [72] the Tribunal said:
When considering the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that effective protection measures are available to the applicants in their receiving country. The Tribunal sees no reason why the police would not protect the first named visa applicant and the second named visa applicant, particularly as the Tribunal has found that the second named visa applicant identifies as being of the Islamic faith now, and they have not contravened any Islamic or other law in marrying in Malaysia. The country information demonstrates that the effective protection measures are able to be provided to the applicants by the State30 and that the State is able and willing to provide such protection…
Accordingly, the Tribunal found that in the event the second applicant’s brother were to represent a real threat to the applicants lives, they would be able to access the available and effective state protection.
Ground 2 disclose no jurisdictional error on the Tribunal’s behalf.
Ground 3
At the hearing the Applicant clarified that by Ground 3 the applicants submit that the Tribunal erred by not accepting that that the authorities could not protect them from civil and Islamic laws.
As set out above, the Tribunal did not accept that the second applicant was a Christian at the time the applicants were married in Malaysia and found that she had converted to Islam by that time. It further found at paragraph [66] that the marriage certificate would indicate that she was of Islamic faith thereby explaining her ability to marry according to Islamic custom and law in Malaysia (as did her Australian marriage certificate). At paragraph [67] the Tribunal said:
The consequence is that the applicant's other claims that they will not be able to register their marriage in Malaysia and that any children they may have together would be illegitimate, and would suffer disadvantages in society, fall away. The fact that the parties have an Australian marriage certificate showing that both parties are Muslim means on the basis of the Islamic Family Law (Federal Territories) Act 1984 that the parties will be able to register their marriage in Malaysia without any adverse consequences for any children they might have in the future.
At paragraphs [68] – [69] of its decision, the Tribunal concluded that there was not a real chance or real risk of the applicants suffering serious or significant harm on account of their claimed interfaith marriage. Accordingly, the Tribunal was not required to, nor did it purport to, consider whether the applicants could access effective state protection from the harm they claimed would result from an interfaith marriage.
Accordingly, Ground 3 discloses no jurisdictional error on the Tribunal’s behalf.
Ground 4
By Ground 4 the applicants assert that the Tribunal did not accept their claims that they will have difficulty living in Malaysia.
By this ground the applicants seek impermissible merits review. As was endeavoured to be explained to the applicants at the hearing, the Court’s role is not to undertake a general review of the Tribunal decision. Merits review is beyond the jurisdiction 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. In any event, as set out above, the Tribunal did not accept that the second applicant was a Christian at that time the applicants were married in Malaysia and found that she had converted to Islam by that time. As a consequence, the Tribunal found that the applicants’ claims arising from their asserted interfaith marriage fell away.
Ground 4 also discloses no jurisdictional error on the Tribunal’s behalf.
CONCLUSION
For the above reasons, the Application must therefore be dismissed.
The Minister seeks the applicant pay its costs fixed in the amount of $6,000. I note that this is below the amount provided for in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 13 September 2024
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