CLZ18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 367

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CLZ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 367

File number(s):

MLG 1311 of 2018

Judgment of:

JUDGE J YOUNG

Date of judgment:

24 April 2024

Catchwords:

MIGRATION – application for judicial review – where Administrative Appeals Tribunal affirmed decision of first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) whether Tribunal ailed to take into account evidence before it – whether interpreter failed to interpret at hearing before Tribunal – grounds unparticularised – found no jurisdictional error on Tribunal’s behalf.

Legislation:

Migration Act 1958 (Cth) ss 5H, 5J, 36(2)(a), 36(2)(aa), 474, 476

Cases cited:

BDE16 v Minister for Immigration and Border Protection [2019] FCA 816

Craig v South Australia (1995) 184 CLR 163

MIEA v Wu Shan Liang (1996) 185 CLR 259

Perera v Minister for Immigration (1999) 92 FCR 6

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Soltanyzand v Minister for Immigration [2001] FCA 1168

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142

WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

38

Date of hearing:

17 April 2024

Place:

Melbourne

Solicitor for the Applicant:

Self-represented litigant

Solicitor for the First Respondent:

Mr Cunynghame of Sparke Helmore

The Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 1311 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CLZ18

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:	24 APRIL 2024

THE COURT ORDERS THAT:

1.The Application filed 14 May 2018 be dismissed.

2.The Applicant pay the First Respondent’s costs in the fixed 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

1. Before the Court is an Application filed on 14 May 2018, in which the applicant seeks 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 applicant a Protection (subclass 866) visa.

   CONTEXT

2. The applicant is a citizen of Malaysia.

3. On 10 August 2016 the applicant entered into Australia on a UD-601 Electronic Travel Authority visitor visa.

4. On 8 November 2016 the applicant applied for a Protection (subclass 866) visa (Visa). The applicant’s claims were set out in her Visa application. Relevantly, the applicant claimed that:

   (1)she left Malaysia because of “economy issue” and she did not believe she would be able to get a job to raise her and her family;

   (2)her sister asked her to come to Australia;

   (3)she had applied for many jobs in Malaysia but failed because of Malaysia’s bad economy; and

   (4)she could not relocate within Malaysia as its poor economy exists throughout the country.

5. On 28 February 2017 the Delegate refused to grant the applicant the Visa.

6. On 8 March 2017, the applicant applied to the Tribunal for review of the Delegate’s decision.

7. On 9 March 2017, the Tribunal sent the applicant confirmation of receipt of her application. In the correspondence, the applicant was advised that if she wished to provide material or written arguments for the Tribunal to consider, she should do so as soon as possible. The applicant was also advised of the need to keep the Tribunal updated with regard to her contact details.

8. On 30 January 2018, the Tribunal emailed the applicant inviting the applicant to attend an in-person hearing on 14 March 2018 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 applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.

9. On 14 March 2018 the applicant appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Malay and English languages

10. On 16 April 2018 the Tribunal affirmed the decision of the delegate not to grant the applicant the Visa. On 17 April 2018, the Tribunal sent a copy of its decision and reasons to the applicant’s email address.

    TRIBUNAL DECISION

11. The Tribunal issued its statement of decision and reasons on 16 April 2018 (Tribunal Decision).

12. At paragraph [12] of the Tribunal Decision, the Tribunal summarised the applicant’s written claims.

13. At paragraph [16] of the Tribunal Decision, in relation to Malaysia’s economy, the applicant claimed in oral submissions to the Tribunal that:

    ·she left Malaysia because of the economic problems she faced as it was difficult for her to get a good job, and the low salary she was making was not enough to solve her problems;

    ·she borrowed 1500 MR from her uncle to attend school but then could not get a job that paid that much as there was a lot of competition;

    ·she worked as a cashier for six months, but her basic salary was on 900 MR per month;

    ·from sometime in 2015 until August 2016 when she arrived in Australia, the applicant did not work and lived with her mother and sister; and

    ·her sister came to Australia first and then paid for her ticket to come to Australia.

14. The Tribunal accepted the applicant’s claims and her concerns about finding employment on return to Malaysia. However, at paragraph [16], the Tribunal noted that the applicant’s concern about finding a job did not amount to serious harm or significant harm as defined in s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (Act).

15. At paragraph [17] of the Tribunal Decision, the Tribunal summarised the applicant’s further oral claims made at the hearing in relation to her medical condition:

    ·she suffers from Neuro Fibromatosis but did not mention it to the Department as it made her sad and depressed;

    ·the treatment for her condition would be the same in Malaysia as it is in Australia, but she was concerned about the cost of the treatment; and

    ·she feared going back to Malaysia with her condition as she felt like she did not belong as not many people had this type of disease, and she was concerned about finding someone who would marry her.

16. The Tribunal accepted that the applicant had a disease but found that she did not come to Australia seeking treatment of this disease, rather she came to Australia to work as she could not find a job that paid well enough in Malaysia.

17. At paragraphs [17]–[18], the Tribunal found that the applicant did not face a real chance of persecution for any reason on return to Malaysia, and it was not satisfied that she had a well-founded fear of persecution as required by s 5J of the Act. The Tribunal therefore found that the applicant was not a refugee within the meaning of s 5H of the Act.

18. Accordingly, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm or a real risk that she would suffer significant harm from the Malaysian authorities, or anyone in the community for her illness or any other reason on return to Malaysia and found that she did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.

    APPLICATION FOR JUDICIAL REVIEW

19. The applicant applied for judicial review of the Tribunal Decision on 14 May 2018.

20. The Application contains the following grounds for judicial review (without amendment):

    1.The Tribunal make decision on 16/04/2018 without looked the eveidance same like when application in oral interview, tribunal totally like not understand what I feel like.

    2.The interpreter not good translate because when I explain to tribunal the interpetor did not do very well in right dialect.

    3.In – of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) there is a description and authorizing me to make such action in Federal Circuit Court.

21. The applicant also filed an affidavit on 14 May 2018 which annexed the Tribunal’s decision.

22. The Minister filed a Response on 17 July 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 16 April 2018.

    4.The application for judicial review does not raise an arguable case for the relief claimed and should accordingly be dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001.

23. The Minister also filed the following:

    (1)written submissions filed on 18 January 2024; and

    (2)an affidavit of service filed on 31 January 2024.

    The hearing

24. The hearing took place on 17 April 2024.

25. The applicant is self-represented and was assisted by an interpreter in the English and Malay languages.

    STATUTORY FRAMEWORK

26. 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].

27. 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

28. Ground 1 appears to assert that the Tribunal failed to take into account evidence before it. Ground 1 is entirely unparticularised. This alone is a sufficient basis to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (WZAVW); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24] (BDE16). Further, at the hearing the applicant was unable to provide any further articulation of this ground, including what evidence the Tribunal did not consider.

29. It is clear from the Tribunal’s Decision that it did consider the applicant’s claims and evidence and made findings in relation to those matters. At paragraph [12] the Tribunal sets out the applicant’s claims and at paragraphs [16] and [17] considers those claims and makes findings in relation to them.  Those findings were open to the Tribunal on the evidence before it.

30. Accordingly, Ground 1 discloses no jurisdictional error on the Tribunal’s behalf.

    Ground 2

31. By Ground 2 the applicant submits that she was not satisfied with the translation provided by the interpreter at the Tribunal hearing. This ground is also entirely unparticularised. This alone is a sufficient basis to dismiss this ground: WZAVW; BDE16. At the hearing the applicant submitted that the interpreter failed to translate something but was unable to identify or articulate what it was that she said was not translated.

32. The transcript of the Tribunal hearing is not before the Court nor has the applicant particularised the errors that she says the interpreter made. The best evidence before the Court is therefore the Tribunal’s Decision.  The Tribunal’s Decision demonstrates that the Tribunal understood the applicant’s claims and evidence and does not indicate any misunderstanding. In addition, the hearing record does not indicate that there were any difficulties with the interpreter at the hearing nor that the applicant raised any issues of concern at the hearing in relation to the interpretation provided. Accordingly, there is no evidence that there were any deficiencies in the interpretation.

33. Further, even if there were deficiencies in the interpretation, there is no evidence that the standard of interpretation was so inadequate as to have prevented the applicant from giving evidence to the Tribunal or that those errors were material or of potential significance to a conclusion of the Tribunal or adverse to the applicant: WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29]; Perera v Minister for Immigration (1999) 92 FCR 6 at [38]-[41]; Soltanyzand v Minister for Immigration [2001] FCA 1168 at [18]; SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 at [66].

34. Accordingly, on the evidence currently before the Court, Ground 2 discloses no jurisdictional error on behalf of the Tribunal.

    Ground 3

35. Ground 3 merely states that the applicant can take action in the Federal Circuit Court and does not allege any jurisdictional error on behalf of the Tribunal.

36. It follows that none of the grounds advanced by the applicant disclose any jurisdictional error on the Tribunals’ behalf.

    CONCLUSION

37. For the above reasons, the Application must be dismissed.

38. The Minister seeks that the applicant pay its costs in the fixed amount of $5,000. I note that this is below the scale amount. I shall order accordingly.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

Associate:

Dated:       24 April 2024