CMD18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 894
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CMD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 894
File number(s): MLG 1314 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 – where certain grounds raised by applicant entirely unparticularised – where certain grounds raised by applicant do not assert any jurisdictional error – found no jurisdictional error on behalf of the Tribunal – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2), 474, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Migration Regulations 1994 (Cth) sch 1, sch 2 cl 866.211
Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
Craig v South Australia (1995) 184 CLR 163
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; 219 FCR 212
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: 37 Date of hearing: 11 September 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Knuckey of Mills Oakley Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1314 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CMD18
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 on 14 May 2018 be dismissed.
3.The Applicant pay the First Respondent’s costs in the fixed amount of $3,500.
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 14 May 2018, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 30 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 applicant is a citizen of Malaysia.
On 6 September 2016, the applicant entered into Australia on a D-601 Electronic Travel Authority visa.
On 22 November 2016 the applicant applied for the Visa. The applicant’s claims were set out in his Visa application. Relevantly, the applicant claimed that:
(1)his father cannot afford to pay back money to a loan shark;
(2)the applicant and his brother ran away and have been “hunted” by the loan shark and “threatened” to be hurt or killed;
(3)he left Malaysia to work and save money to settle the debt to the loan shark;
(4)if he returns to Malaysia, the loan shark will hurt him as he is unable to settle the debt, and the loan shark has threatened to hurt his family if they cannot find the applicant to pay the debt; and
(5)he has tried to move to another part of Malaysia but the loan shark could still find where he worked and stayed because they have many friends.
On 7 March 2017, the Delegate refused to grant the applicant the Visa (Delegate Decision). The Delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations under s 36(2) of the Migration Act 1958 (Cth) (Act).
On 10 March 2017, the applicant applied to the Tribunal for review of the Delegate Decision.
On 17 March 2017, the Tribunal emailed the applicant confirmation of receipt of his application. The applicant was advised if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.
On 8 November 2017, the Tribunal emailed the applicant inviting the applicant to attend an in-person hearing on 11 December 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 applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 11 December 2017 the applicant appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Malay and English languages.
On 30 April 2018 the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa. On 1 May 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 30 April 2018 (Tribunal Decision).
At paragraph [18] of the Tribunal Decision, the Tribunal summarised the applicant’s claims contained in his Visa application. At paragraph [19] the Tribunal summarised the applicant’s oral evidence that the debts to the money lenders were incurred by his father whose whereabouts were unknown, and that the applicant was now considered to be responsible for his father’s debts. At paragraph [19] and [21], the Tribunal noted that the applicant was unable to tell the Tribunal exactly what amounts of money and interest were outstanding. At paragraphs [22] – [33] of the Tribunal Decision, the Tribunal considered the applicant’s claim that money lenders viewed him as responsible for his father’s gambling debts, that he was threatened and beaten by them, and that he was unable to lodge a police report.
At paragraphs [34] – [50] the Tribunal considered country information relevant to loan sharks and the Royal Malaysian police force.
At paragraphs [56] – [58], the Tribunal expressed concerns regarding the applicant’s credibility. The Tribunal noted that the applicant’s responses were “vague and lacking in detail”, particularly in relation to the amount of money he was owed. Further, the Tribunal identified that country information available to it demonstrated that the authorities in Malaysia have been more proactive against illegal money lenders in recent years. Accordingly, the Tribunal did not accept that the applicant was unable to access police protection or was located each time he moved within Malaysia.
Accordingly, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm or a real risk that he would suffer significant harm on return to Malaysia and found he did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal Decision on 14 May 2018.
The Application contains the following grounds for judicial review (without amendment):
1.During my hearing session I was dissatisfied with the interpreter because she did not speak well with what I said.
2.I appealed to the court to consider my appeal in that of the 44 Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) there is a description and authorising me to make such action
3.However, we eligible section 31(1) of the Act provides that there are to be prescribed classes of visas. These are set out in schedule 1 to the regulations. In addition, there are visas classes provide for in the act, including protection visas.
The applicant also filed an affidavit on 14 May 2018 which annexed a copy of the Tribunal Decision.
The Minister filed a Response on 23 July 2018. The Response contained the following grounds of opposition (without amendment):
1.The application filed on 14 May 2018 seeks judicial review of a decision of the Administrative Appeals Tribunal (AAT) dated 30 April 2018. The AAT affirmed a decision to not grant the applicant a protection visa.
2.The application pleads three grounds. Ground one broadly alleges an interpreter error. In the absence of particulars and evidence from a qualified interpreter, the first respondent contends such a ground cannot be established, Grounds two and three do not allege any error by the AAT.
3.The first respondent opposes all orders sought by the application on the basis that no arguable case for the relief sought is raised.
The Minister also filed written submissions on 28 August 2024.
The Hearing
The hearing took place on 11 September 2024.
The applicant is self-represented and 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 applicant submits that he was not satisfied with the translation provided by the interpreter at the Tribunal hearing.
That submission must be rejected.
Firstly, 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]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24].
Secondly, at the hearing the applicant submitted that when translating his claims the interpreter appeared unhappy and raised their voice. Even taken at its highest, this does not assert any error or deficiency in interpretation.
Thirdly, the transcript of the Tribunal hearing is not before the Court nor has the applicant particularised the errors that he says the interpreter made. The best evidence before the Court is therefore the Tribunal Decision. The Tribunal Decision does not indicate that there was any concern raised with, or difficulty arising from, the interpretation provided. 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 interpreter.
Fourthly, 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].
Accordingly, on the evidence currently before the Court, Ground 1 discloses no jurisdictional error on behalf of the Tribunal.
Ground 2
Ground 2 merely states that the applicant’s ability to apply for review of the Tribunal’s decision to the Court and does not allege any jurisdictional error on behalf of the Tribunal.
Ground 3
Ground 3 is somewhat unclear. Further, at the hearing the applicant was unable to further articulate Ground 3, saying that this ground had been partially written by a friend. If by Ground 3, the applicant intends to submit that they meet the criteria set out in Schedule 1 of the Migration Regulations 1994 (Cth) (the Regulations) and thereby satisfies the criteria for the Visa, Ground 3 must fail. At issue before the Tribunal was whether the applicant met the criteria set out in ss 36(2)(a) or 36(2)(aa) of the Act, as is required by clause 866.211 of Schedule 2 of the Regulations and with reference to the applicable policy guidelines pursuant to Ministerial Direction 56. The criteria for a protection visa are correctly set out by the Tribunal at paragraphs [6]-[11] of its decision. As set out above, at paragraphs:
(a)[18] - [21], the Tribunal summarised the applicant’s claims;
(b)[22] - [33], the Tribunal considered the applicant's evidence;
(c)[34] - [50], the Tribunal considered country information in relation to loan sharks and the Malaysian police force and sets out its findings at paragraphs [56]- [63];
(d)[56] - [58], the Tribunal did not accept that the applicant was unable to access police protection or was found when he relocated;
(e)[59] – [60], based on credibility findings, the Tribunal did not accept that the applicant was held by a moneylender as obliged to repay his estranged father’s debt or that there was a real chance that the applicant would suffer serious harm on return to Malaysia because he has failed to repay the moneylender. As such, the Tribunal concluded that the applicant did not meet the criteria under s 36(2)(a); and
(f)[61], for the same reasons, found that the applicant did not face a real risk of significant harm on return to Malaysia and therefore did not meet the criteria under s 36(2)(aa).
I discern no error in the approach taken by the Tribunal.
It follows that none of the grounds advanced by the applicant disclose any jurisdictional error on the Tribunal’s behalf.
CONCLUSION
For the above reasons, the Applicant must be dismissed.
The Minister seeks that the applicant pay its costs in the fixed amount of $3,500. I note that this is below the amount as 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 thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 13 September 2024
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