CMX24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 192
•21 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CMX24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 192
File number(s): PEG 152 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 21 January 2025 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL – applicant self-represented – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5J(1)(a), 36(2)(a), 36(2)(aa), 476(2) Cases cited: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
WZATH v Minister for Immigration [2014] FCCA 612
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 21 January 2025 Place: Perth Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms Martin Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 152 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CMX24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
21 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 the Second Respondent be amended to “Administrative Review Tribunal”.
3.The application filed on 3 May 2024 be dismissed.
4.The applicant pay the Respondent’s costs fixed in the sum of $6,500.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
The applicant is a citizen of Timor-Leste. On 5 June 2023, he first arrived in Australia, pursuant to a temporary work visa. On 9 October 2023, the applicant applied for a Protection (Subclass 866) visa. In the visa application the applicant said that the reason he was seeking protection in Australia is because he got involved in a martial arts group. He said he was trying to escape from the group and gang due to there being so many conflicts between other rival gangs, for example, fighting and killing each other. He said that he thinks that if he is returned to Timor-Leste, the gangs will harm and kill him.
On 23 November 2023, the delegate refused to grant the applicant the visa. The applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision on the same day. On 9 January 2024, the Tribunal invited the applicant to attend the hearing on 2 February 2024. The applicant asked for the hearing to be conducted by audiovisual link and the Tribunal agreed.
On 2 February 2024 the applicant attended the hearing in the Tribunal with the assistance of an interpreter in the Tetum language. On 19 April 2024, the Tribunal affirmed the delegate’s decision not to grant the applicant a visa. The Tribunal set out the applicant’s claims and the evidence that he had given, as well as the evidence given by his wife in Timor-Leste via audiovisual link.
In summary, the Tribunal set out the applicant’s evidence that he is married and has three children, including a child that was born after he arrived in Australia. His wife and children live in Oecusse in Timor-Leste, along with his mother and sisters. He also has two brothers who live and work in Dili. The applicant worked as a rice farmer in Oecusse before he came to Australia. He now works in Australia and sends money back to his family in Timor-Leste. In and around 2019, the applicant became involved in a martial arts group in Timor-Leste, Persaudaraan Setia Hati Terate, which is a very big sports group. He became involved because he liked the aspects of the training there. He graduated in a significant ceremony on 17 August 2020, in a group of around 1,300 people.
After his graduation ceremony members of a rival group called EKS were jealous and attacked the graduate convoy and a big fight developed in the groups where they stoned each other. The applicant was not injured and this was the first and last time that he was ever involved in a fight or any violence. After that incident, the PHST and EKS groups, as well as another group, would look for each other, beat each other up or throw stones at each other, but the applicant was not personally involved. He remained with PHST and continued to train with them.
The conflict between the groups is ongoing. After the graduation the applicant stayed in Dili for a while, but the situation worsened and escalated to people spying on each other as well as attacking each other. So in around September, he returned to Oecusse. When the applicant graduated with PHST he took an oath, and he will always be one of their members.
The applicant said that if he went back to Oecusse he would involve himself with the PHST, but that he wouldn’t do so in Dili because of the conflicts. The applicant also said that the government has now banned all activities of martial arts and training in Dili. He added that there is no work in Oecusse, so it would be very challenging for him to return there, as he could not assure his children’s future.
The evidence given by the applicant’s wife corroborated the claims regarding his membership of the PHST, the conflict between martial arts groups and the dangers experienced because of this in Dili. Her evidence was that the applicant was not safe there and that he had to come back to Oecusse and stay until he would go to Australia to work. The applicant’s wife also reiterated his claims about there being no work in Timor-Leste, and that she wanted him to extend his stay in Australia and work.
The Tribunal assessed the applicant’s evidence as a forthright, honest and mostly credible account of his personal experiences, and his fears, noting that his claims are also plausible when considered with country information about intergroup fighting between martial arts groups and street gangs in Timor-Leste.
The Tribunal accepted that the applicant was a member and trained with the PHST, and that while travelling in a convoy with other members after the graduation event, he was caught up in an attack by a rival gang. However, the Tribunal noted that whilst the applicant claimed he was followed by EKS members after the event, the evidence did not suggest that he was ever approached or harmed, and given his low-level involvement and the large numbers of PHST members, it was not plausible that they would survey or follow him over any period without taking further steps.
The Tribunal accepted the applicant’s sense of fear and caution was heightened following the graduation ceremony incident, and that he was fearful about any further retaliation or unfinished business from EKS against any PHST member. However, the Tribunal did not accept that the applicant was a personal target or that he was personally followed. The Tribunal otherwise considered that the applicant had given credible evidence.
The Tribunal accepted that the applicant genuinely holds a subjective fear of being harmed in intergroup conflict between martial arts groups in Timor-Leste, and that he is genuinely worried about his financial situation and being able to provide for his family. However, the Tribunal was not satisfied that the applicant is a refugee or entitled to complementary protection under the Migration Act 1958, based upon the following factors and findings.
First, the Tribunal put weight in the fact that the applicant is an ordinary member of the PHST, and that he, at the time, had not been engaged with the group or in Timor-Leste for approximately seven months. His involvement with the group was limited to the sports and training aspects, and the only time he was ever involved in a fight was after the graduation ceremony on 17 August 2020.
Second, the Tribunal considered the applicant’s involvement was at a low level only, and that unless he is seen training or with other members of the PHST or wearing identifiable PHST attire, the chance that he would be personally remembered by any rival gang members as a member of the PHST or otherwise identified or perceived as a member and targeted on that basis is remote at best.
Third, weight was also put on the applicant’s evidence that the conflict is generally not an issue in Oecusse, and that he would only re-engage and train with the PHST if he was there as opposed to Dili. Weight was also put in the applicant’s confirmation that he would not do so in Dili, not only because of the conflicts, but also because the activities are banned in Dili by the government.
Accordingly, the Tribunal found that the applicant will not face a real chance of being targeted and harmed, including seriously harmed, on account of his membership or affiliation with the PHST in either Oecusse or in Dili. The Tribunal also considered that the applicant could take reasonable steps to modify his behaviour, including by refraining from training and engaging with the PHST or wearing identifiable attire in Dili, to further lower the chance or risk of his being harmed.
On these bases, the Tribunal was not satisfied that the applicant faced a real chance of serious harm or a real risk of significant harm, and he did not meet the criteria in sections 36(2)(a) or 36(2)(aa) of the Act.
The Tribunal also considered the applicant’s concerns about not being able to find work if he returns to Timor-Leste. The Tribunal accepted that he is concerned about his financial future and that of his family. However, for reasons that were set out, the Tribunal was not satisfied that any difficulties the applicant might face in getting work, or any other difficulties he might face financially, arise from the result of discriminatory conduct or intentional acts or omissions, or from any reason mentioned in section 5J(1)(a) of the Act.
The Tribunal also considered that the risk of harm to the applicant arising out of the economic state in Timor-Leste is one faced by the population at large rather than by the applicant personally. The Tribunal was also not satisfied that there was a real risk that the applicant would suffer significant harm, and he did not meet section 36(2)(aa) on that basis.
On 10 May 2024, the applicant applied for judicial review of the Tribunal’s decision. In general terms, an applicant has an onus of establishing jurisdictional error by the Tribunal. The court does not have the jurisdiction to determine the merits of the applicant’s visa application or grant him a visa. The court’s jurisdiction is limited to determining whether the Tribunal made a jurisdictional error when it affirmed the decision to not grant the applicant a protection visa.
The applicant’s affidavit made on 2 May 2024 refers to the delegate’s decision to not grant him a visa. The court does not have any jurisdiction in relation to that decision.[1] The applicant has been self-represented throughout these proceedings. He did not file an amended application, any further evidence or submissions, notwithstanding orders permitting him to do so.
[1] Section 476(2) of the Act.
There is one ground of review which, broadly speaking, draws attention to whether the Tribunal’s decision was procedurally fair. The ground is not particularised, and without more it is difficult to understand. In line with WZATH v Minister for Immigration,[2] the Minister has submitted that the ground of review should be dismissed on that basis as it is not particularised.
[2] WZATH v Minister for Immigration [2014] FCCA 612; and on appeal WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
However, as was also pointed out by the Minister in submissions, with reference to DQQ17 v Minister for Immigration and Border Protection,[3] the consequences of a failure to particularise a ground will depend on the circumstances, and it will be rarely appropriate to dismiss an application concerning a protection visa where the person is appearing on their own behalf.
[3] [2018] FCA 784.
At the hearing, the Minister’s counsel provided the applicant with an overview of the Minister’s written submissions to the applicant with the assistance of the interpreter. After that, I invited the applicant to expand upon the ground of review that is included in the application.
The applicant submitted that the application was prepared with some assistance, but that he never said that the Tribunal’s decision was not fair. He said that he gave his documents to an agency and that maybe someone at the agency prepared the allegation, but that it wasn’t him.
I drew the applicant’s attention to his affidavit, particularly paragraph 2, where he gave evidence that the Tribunal hadn’t acted procedurally fairly to him. However, the applicant had no further submissions to make about the ground of review.
In considering the Tribunal’s reasons for decision, I agree with the submissions made by counsel for the Minister that the Tribunal complied with its procedural fairness obligations by inviting the applicant to attend a hearing to give evidence and present arguments relating to the issues.
The Tribunal permitted the applicant to appear at the hearing by audiovisual link at his request, and received evidence from his wife in Timor-Leste by audiovisual link. During the hearing, the Tribunal’s reasons show that the applicant was given a fair and meaningful opportunity to call evidence, understand the process and present the arguments in support of his application. He was assisted by a Tetum interpreter. The Tribunal questioned the applicant about the determinative issues and put to him its concerns, including its doubts about whether he would be targeted and harmed and the reasons why, and issues concerning the passage of time and the impact that that may have on the applicant’s claims.
The Tribunal also explained to the applicant the concepts of serious and significant harm within the context of his economic claims, and how they bear upon the Tribunal’s task. The applicant was asked if he would like an opportunity to provide further information to the Tribunal after the hearing, but he declined that invitation. Notwithstanding that the ground of review was not particularly pressed by the applicant, I have considered it and I do not consider that there has been a denial of procedural fairness or jurisdictional error.
When I asked the applicant if there was any other basis that he might allege the Tribunal fell into jurisdictional error, he told me at the hearing that he needs documents to make money to improve his family’s life back home, and then he will return to Timor. He clarified that he is looking for a visa to enable him to be able to work, that he can’t return to Timor early because there is not enough time for him to make money, and this is the main reason that he wishes to stay in Australia.
These matters were the subject of the applicant’s evidence in the Tribunal, but they do not allege any jurisdictional error by the Tribunal. I have explained to the applicant the limitations on the judicial review proceedings. The Tribunal considered the applicant’s economic claims and found that they were not made out. I do not consider that the Tribunal’s decision is affected by jurisdictional error, and in those circumstances the application should be dismissed.
The Minister applied for costs fixed in the sum of $6,500. The applicant submitted that the money he earns, he sends back home for his family to live, and that he does not save or keep a lot of money in Australia. He said the sum is very large, and it will be difficult for him to pay it. I explained to the applicant that issues about his capacity to satisfy a costs order are different from the considerations to be given as to whether a costs order should be made.
As the application is dismissed, I will order the applicant pay the Minister’s costs fixed in the sum of $6,500, which I note is within 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 thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Liveris. Associate:
Dated: 17 February 2025
0
3
1