CLX24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 193
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CLX24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 193
File number(s): PEG 154 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 23 January 2025 Catchwords: MIGRATION – REVIEW OF ADMINISTRATIVE REVIEW TRIBUNAL – where applicant absent from the hearing – application dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 – applicant ordered to pay the first respondent’s fixed costs Legislation: Migration Act 1958 (Cth) ss 5J(1)(a), 5H, 36(2)(a)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.05(1), 13.05(2), 13.05(4), 13.06(1)(c), Part 2 Division 1 Schedule 2 Item 3
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 23 January 2025 Place: Perth For the Applicant: The Applicant did not appear Counsel for the First Respondent: Ms Tyagi For the Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison ORDERS
PEG 154 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLX24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of Second Respondent be amended to “Administrative Review Tribunal”.
3.The Application be dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
4.The applicant pay the First Respondent’s costs fixed in the sum of $5,900.
NOTATION
A.In accordance with rule 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the applicant may apply to set aside the orders made today on filing and serving an application and affidavit setting out their reasons for wanting the orders set aside and explaining their non-attendance at court today.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
These are judicial review proceedings commenced by the applicant against a decision of the Administrative Appeals Tribunal to affirm the decision of the delegate of the Minister for Immigration and Border Protection dated 22 February 2018 not to grant the applicant a Protection (Class XA) (subclass 866) visa.
The applicant is a citizen of Malaysia. She first arrived in Australia on 19 February 2017 on an Electronic Travel Authority (Class UD) (subclass 601) visa.
On 17 November 2017, the applicant applied for the protection visa, in which she claimed to require protection from her father because he had abused her since 2012 and attempted to force her into a marriage with an abusive man whom she barely knew. She said that upon her return, her father would find her, accuse her boyfriend of kidnapping her and compel her to marry the man he had chosen for her. She claimed she was not sure whether the authorities would protect her because in her religion her father had the power to make the decisions.
On 22 February 2018, the delegate refused to grant the applicant the protection visa. The delegate found that the applicant had not claimed to fear harm in Malaysia for one or more of the reasons in s 5J(1)(a) of the Act and accordingly did not satisfy ss 5H and 36(2)(a) of the Act. The delegate relied on country information to find that the applicant would receive effective protection from the Malaysian authorities against any threats or harm such that there was not a real risk that she would suffer significant harm.
On 6 March 2018, the applicant applied to the Tribunal for review of the delegate's decision. On 10 August 2023, the Tribunal invited the applicant to complete a pre-hearing information form. The applicant completed and returned the pre-hearing information form on 14 August 2023. She did not raise any additional claims.
On 22 February 2024, the Tribunal invited the applicant to appear before it to give evidence and present arguments at a hearing scheduled for 25 March 2024. On 25 March 2024, the applicant appeared before the Tribunal with the assistance of an interpreter in the Malay language.
During the hearing in issue arose about the chronology of events, and the applicant attending university, her commencement of employment, and her travel to Australia. The Tribunal told the applicant she could have further time to investigate and clarify this and after the hearing, the Tribunal sent the applicant an email confirming that she could have 7 days to provide information that she might find regarding the start and end dated of her university studies in 2016/2017.
On 28 March 2024, the applicant provided documents about the end of her university studies in 2017. The document is in Bahasa Melayu. On 2 April 2024, the Tribunal wrote to the applicant saying that she should provide a translated copy of the document by the close of business on 4 April 2024, by a translator with accreditation from the National Accreditation Authority for Translators and Interpreters. The applicant complied with that request.
In its reasons, the Tribunal set out the procedural history of the matter, the legislative criteria for the grant of the protection visa and the mandatory considerations it was required to take into account. The Tribunal summarised the applicant's background and immigration history, the applicant's claims in the protection visa application and delegate's decision. The Tribunal summarised the oral evidence the applicant gave at the hearing.
The Tribunal recorded its concerns with the applicant's factual claims including that the evidence in relation to when she was studying was inconsistent, the evidence in relation to her father approaching her to marry was inconsistent, and she could not remember the name of the person her father wanted her to marry.
The applicant was questioned by the Tribunal about whether she feared persecution from her father in the circumstances where she is now married and has two children, and has not spoken to her father apart from the telephone call in 2019 when her first son was born, and she agreed that her father has no power over her now.
The applicant agreed she could obtain work and live elsewhere in Malaysia away from her father. She said that she did not fear economic harm, she would be able to find work, and she accepted that her father would not be able to harm her because her circumstances have changed. The applicant also accepted that she could call the police, as the tribunal read out to her the country information that she could obtain a protection order against him.
The Tribunal accordingly did not accept that the applicant left Malaysia because her father was going to force her to marry a man not known to her. The Tribunal considered the applicant's additional claim raised at hearing regarding her economic circumstances in Malaysia. The Tribunal did not accept that any economic harm the applicant may face would amount to serious harm. Whilst the Tribunal accepted that it would be difficult for the applicant to re-establish herself in Malaysia, it did not accept that the applicant would be unable to find work in Malaysia. The Tribunal concluded that she did not face a real chance of serious harm arising from her economic circumstances. The Tribunal additionally found that any economic harm would not be for one or more of the reasons in s 5J(1)(a) of the Migration Act 1958.
In considering the complementary protection criterion, the Tribunal relied on the factual findings made in the refugee assessment in concluding that it did not accept that there were substantial grounds for believing that the applicant faced a real risk of significant harm arising from her father's conduct. The Tribunal also accepted that the applicant would face difficulties and challenges arising from finding work in Malaysia, but that she would be able to find paid employment and there was accordingly no real risk that she would suffer significant harm.
On 9 April 2024, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.
On 9 May 2024, the applicant applied for judicial review of the Tribunal’s decision. She has been self-represented throughout the proceedings. There are four grounds of judicial review pleaded. A number of jurisdictional errors are identified very broadly.
Directions were made by the registrar on 27 August 2024 in preparation for the matter to proceed to hearing. The applicant has not filed any written submissions, any amended application or any additional evidence in accordance with the registrar's orders of 27 August 2024, and she has not engaged with the Minister's lawyers, notwithstanding being served with a court book on 9 September 2024, and also being served with the Minister's written outline of submissions on 16 January 2025.
A hearing date was listed for today at 10.00 am on 12 December 2024 and the parties were notified of the hearing date by email on that day. I am satisfied that the applicant was notified of the hearing today, by way of email to the address provided in the application. She has also been sent the court book and the Minister’s submissions at that email address, and by post to the residential address notified on the application.
An interpreter was organised for the applicant's assistance at the hearing today. The applicant was called in the foyer of the Court at approximately 10.15 am. She did not appear. Her mobile telephone number was called, which rang out with no answer, at approximately 10.15 am. It is now approximately 11.00 am and there has still been no appearance by the applicant.
The application made by the Minister's counsel is that I dismiss the application under rule 13.06(1)(c) because the applicant has not appeared. In my view that is the appropriate course. I do not know the reasons why the applicant has not engaged with the litigation process, or why she has not appeared today, having been notified of the Court hearing in December last year and having been served the documents that she has been served with.
There is also an application that the applicant pay the Minister's costs fixed in the sum of $5,900 as a consequence of my orders. Rule 13.06(2) provides that if a party to a proceeding is absent from a hearing, a Court or registrar may also make an order of the kind mentioned in subrules 13.05(1), (2) or (4), or any other order, or may give any directions and specify any consequences for non-compliance with the order that the Court or registrar thinks just.
In my view, it is just and appropriate for a costs order to be made. I consider the amount sought is reasonable, particularly having regard to the amount specified in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Liveris. Associate:
Dated: 17 February 2025
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