CPA24 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2024] FedCFamC2G 1130

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CPA24 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1130

File number:

PEG 172 of 2024

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

4 November 2024

Catchwords:

MIGRATION – Administrative Appeals Tribunal – affirmed refusal of protection visa (class XA) (subclass 866) – whether risk and fear of significant harm under s 36(2A) misconstrued – whether clear particulars of information given to applicant under s 424A read with s 424AA – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5AAA, 36, 36(2)(a), (aa), 36(2A), 424(1), 424A, 424A(3)(a), (b), (ba), 425.

Migration Regulations 1994 (Cth) sch 2.

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Multicultural and Indigenous Affairs v SLGB (2004) 207 ALR 12

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225

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

Division:

Division 2 General Federal Law

Number of paragraphs:

36

Date of hearing:

29 October 2024

Place:

Perth

Solicitor for the Applicant:

Self-represented litigant

Solicitor for the First Respondent:

Mr Mayne (Sparke Helmore)

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

PEG 172 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CPA24

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	4 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to ‘Minister for Immigration and Multicultural Affairs’.

2.The application is dismissed.

3.The Applicant is to pay the First Respondent’s costs, fixed in the amount of $6500.00.

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 D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision by the Administrative Appeals Tribunal (“the Tribunal”), as it was then, dated 22 April 2024 to affirm the refusal of a protection visa application.

   BACKGROUND

2. The applicant is a female citizen of Malaysia. She arrived in Australia on 26 June 2018 on an Electronic Travel Authority visa. She has not departed Australia since.

3. On 30 August 2018, the applicant applied for a Protection (class XA) (subclass 866) visa (“the visa”) on the basis that she feared returning to Malaysia because she was a homosexual.

4. On 5 February 2019, a delegate of the Minister (“delegate”) refused to grant the applicant the visa. On 10 February 2019, the applicant applied to the Tribunal for a review of the delegate’s decision.

5. In a pre-hearing information form, the applicant claimed that in November 2018, she was almost choked to death but was saved by the police. The applicant claimed she had trauma and depression as a result of that incident. The applicant attended a Tribunal hearing on 9 January 2024.

6. The Tribunal affirmed the delegate’s decision. The applicant now seeks judicial review in this Court. Accordingly, for the reasons set out below, the application must be dismissed.

   THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION

7. At [9] of the decision, the Tribunal clarified that the issue before it was whether the applicant was a refugee or a person who met the criterion for complementary protection. At the delegate’s level, the applicant’s claim for protection was based on her claimed homosexuality and fear of returning to Malaysia together with a claim of violence.

8. From [50] – [54] the Tribunal instructed itself as to the criteria for a protection visa which is set out in section 36 of the Migration Act 1958 (Cth) (“the Act”) and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

9. In accordance with Ministerial Direction No.84, the Tribunal considered policy guidelines prepared by the Department of Immigration and the relevant country information assessments by the Department of Foreign Affairs and Trade.

10. At the Tribunal hearing, the applicant provided the following oral evidence in relation to her protection claims, the evidence presented in the protection visa application form and pre-hearing information:

    ·The applicant stated she had paid an unknown person to prepare her protection visa application as she had been advised that the visa would allow her to work legally in Australia. She did not wish to cancel the application and be required to return to Malaysia. She said her current employer may consider sponsoring her for a work visa ([24]-[25]).

    ·The applicant stated she was not homosexual and that the information in the visa application stating that she left Malaysia because she was a homosexual was incorrect. The information that if she returned to Malaysia she would be persecuted by family, harmed or mistreated was part of the LGBTQI claim and was incorrect. Further, the applicant did not make that claim anymore.

    ·The Tribunal read out information from the pre-hearing form that the applicant claimed to have prepared and was provided to the Tribunal on 4 December 2023 at [28]-[29]. The applicant stated that this information was incorrect and was in the pre-hearing information form because a friend had told her to copy the protection visa application.

    ·In the pre-hearing information form, the applicant referred to an assault by a male that was referred to as ‘Man’ during the Tribunal hearing. The applicant stated that she had known ‘Man’ since arriving in Australia in 2018. There was a violent incident in and around November 2018 involving her and ‘Man’ ([31]-[40]). The applicant fears that ‘Man’ may still be looking for her and fears returning to Malaysia as she feels safer in Australia. The applicant told the Tribunal that ‘Man’ had contact with her friends and issued a threat that if the applicant returns to Malaysia, she “will be finished”.

    ·The applicant holds a fear about her mental health, if she returns to Malaysia, as she is suffering from depression. The applicant has not been medically treated for depression as she prefers to manage it herself. However, she occasionally feels nervous and shakes when she recalls the November 2018 incident [41].

    ·When questioned about her concerns of returning to Malaysia out of fear of the Royal Malaysian Police, the Tribunal put to the applicant that if she returned to Malaysia, she would be protected by the police just as she had been here in Australia. The applicant asked the Tribunal if she could stay one more year in Australia as she still had to pay a debt to the friends she had borrowed $50,000.00 from in Malaysia [45].

11. In considering the claims and evidence made by the applicant, at [57] – [58] the Tribunal clarified the issue on foot was whether it was satisfied there was a real chance of harm or significant harm, if the applicant returns to Malaysia, because of ‘Man’ after being previously assaulted by him and the applicant facing resultant health issues. At the Tribunal hearing, the applicant did not pursue the claim that she was a lesbian or make a claim about a debt owed to her friends.

12. The Tribunal noted that pursuant to s 5AAA of the Act, the Tribunal had no obligation or responsibility to specify or assist the applicant to specify her claims. The responsibility fell on the applicant to specify all particulars of a claim.

13. The Tribunal made the following findings in relation to the applicant’s claims:

    (a)As to the LGBTI claim, the Tribunal found that the applicant is not a member of the LGBTI community, is not gay/lesbian and the claims made in the protection visa application and pre-hearing information form were not genuine. The Tribunal accepted the applicant’s evidence at the hearing about her sexual orientation, the incorrect representations made in the two documents, the fact that the applicant had not read the protection visa application before it was submitted by a third party and that she had followed a friend’s advice to copy the claim in the protection visa application into the pre-hearing information form.

    (b)As to the applicant’s fear of violence claim, the Tribunal accepted the applicant’s evidence as to the nature and depth of her relationship with ‘Man’. The Tribunal accepted that Man had physically assaulted the applicant, a police report was made and in November 2018 Australian police removed the applicant from the situation and returned her passport. The Tribunal did not accept that ‘Man’ made a threat towards the applicant, that ‘Man’ will pursue her if she returns to Malaysia and did not find that ‘Man’ looking at the applicant’s Tiktok profile was in itself a threat or threatening. The Tribunal also found that the applicant is safe given the police followed up with her. For these reasons, the Tribunal was not satisfied there was a real chance of harm. [ CB 86; 65-72]

    (c)As to the applicant’s health claims, the Tribunal accepted the applicant’s evidence about not sleeping, feeling nervous and shaking when reminded of the incident. Further, that it is possible in the future she may be triggered by the incident and has the health claims set out above. The Tribunal referred to country information at [46]-[49] of the decision regarding Malaysia’s well-established universal health care system and stated that public mental health counselling services are limited. However there are services that can be easily accessed in person or online for people in Malaysia. The Tribunal ultimately was not satisfied that there was a real chance of harm in the foreseeable future on the basis that the applicant could manage her health in Malaysia as she had done in Australia and that services existed in Malaysia which allowed citizens to manage their mental health.

    (d)As to the applicant owing money to friends in Australia, the Tribunal accepted that the applicant had only repaid $10,000.00 to the friends and had $40.000.00 remaining. However, the Tribunal noted that the applicant did not claim to fear persecution on this basis or allege there was a real chance of harm. The Tribunal found at [81] of the decision record that the applicant only raised the issue at the end of the hearing to delay their return to Malaysia and ultimately there was no real chance of serious harm now or in the reasonably foreseeable future if the debt remained unpaid.

14. The Tribunal found that the applicant was not a person in respect of whom Australia held protection obligations under s 36(2)(a), and under the alternative criterion in s 36(2)(aa).

15. The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

    GROUNDS OF JUDICIAL REVIEW:

16. In an Originating Application filed on 5 June 2024, the applicant advanced six grounds of judicial review as follows:

    1.The Tribunal misconstrued the risk and fear of significant harm as set out in section 36(2A) of the Migration Act 1958.

    2.The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her returns to Malaysia from a Malaysian man who previously assaulted the applicant in Australia and resultant health issues.

    3.The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act

    4.The Tribunal has failed to investigate applicant's claim, especially the grounds of persecution in Malaysia.

    5.The second respondent failed to comply with the mandatory requirement The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her returns to Malaysia from a Malaysian man who previously assaulted the applicant in Australia and resultant health issues.

    6.under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

    THE APPLICANT’S SUBMISSIONS

17. The applicant appeared before the Court unrepresented.  She was assisted by an interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to her. 

18. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

19. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of her case.  The applicant told the Court that the ‘crazy man’ was still bothering her and that she still feared going back to Malaysia. The Tribunal found Malaysia is safe, but it is not for her.

20. At the conclusion of the respondent’s oral submissions, the applicant was asked if you wish to state anything in reply.  She answered “No”.

    THE FIRST RESPONDENT’S SUBMISSIONS

21. The first respondent construes grounds one, two and five of judicial review as alleging that the Tribunal misconstrued the “risk and fear of significant harm” as set out in s 36(2A) of the Act. It was submitted that the Tribunal’s reasons had regard to the correct test in considering the complementary protection grounds in s 36(2)(aa).

22. In particular, the Tribunal had accepted the events regarding ‘Man’ and the applicant’s subsequent health effects. However, based on her own evidence, it rejected that there was a real chance of harm given that the applicant and ‘Man’ had not had contact since November 2018 and ‘Man’ was now married with a child. The Tribunal’s findings could not lead the Tribunal to a conclusion that there was a risk to the applicant’s life. Based on these factual findings, the Tribunal was also permitted to conclude that there was no real risk that the applicant would suffer significant harm if she returned to Malaysia.

23. Ground three is an allegation that the Tribunal decision was not made in accordance with the Act and the Tribunal could not be said to be reasonably satisfied as its decision did not accord with the provisions. The Tribunal is required to refuse to grant the applicant a visa unless they are “affirmatively satisfied” that the criteria for the visa has been met; (see: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17]; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]). In these circumstances, the Tribunal had made findings that none of the applicant’s claims gave rise to a real chance of serious harm now or in the reasonably foreseeable future, and it could not be reasonably satisfied pursuant to s 36(2)(a) or (aa).

24. As to ground four, the first respondent submits that the Tribunal had regard to the applicant’s claims in the visa application, pre-hearing information form and oral evidence at the hearing. The Tribunal was engaged in an active and intellectual engagement with the applicant’s claims in assessing whether the relevant criteria in s 36(2)(a) or (aa) was met.

25. Ground six alleges that the Tribunal failed to comply with an obligation under s 424A of the Act. The first respondent submits that there was no obligation under that section as its decision to affirm the delegate’s decision was based on information provided by the applicant that it had before it and country information which fell under the exceptions of s 42A(3)(ba),(b) and (a). The Tribunal had also invited the applicant to provide information pursuant to s 424(1), and under s 425 had invited her to attend a hearing. The ground fails to establish any denial of procedural fairness.

    CONSIDERATION

26. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

    … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The Court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

27. It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant; (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).

28. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out; (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348).

29. It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee; (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).

30. It was for the applicant to provide her evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction; (see: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [76]. The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”; (see: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82]).

31. Grounds one, two and five allege the Tribunal misconstrued the “risk and fear of significant harm” if she were returned to Malaysia. The Court is satisfied that the Tribunal carefully set out the applicant’s evidence in relation to her fears regarding ‘Man’ and considered it but rejected the assertion that there was a real risk of harm if she were to return to Malaysia. The Court is satisfied this was a factual finding that was open to the Tribunal based on the evidence that was before it and for the reasons it gave. There is nothing illogical or irrational or legally unreasonable in this finding. If anything, grounds one, two, and five simply seek for the court to undertake impermissible merits review. Grounds one, two and five have no merit

1. Ground three is a bare claim that the Tribunal had no jurisdiction to make its decision as its “reasonable satisfaction” was not arrived at in accordance with the provisions of the Act. No particulars are attached to this claim as to what matter was not considered by the Tribunal and thus how the Tribunal was unable to reach the relevant state of satisfaction. The Court is satisfied that the Tribunal fully considered all the evidence that was before it, including the evidence given at the application phase, the pre-hearing phase before the Tribunal and then at the Tribunal itself. The Court is satisfied that there was an active and intellectual engagement with the applicant’s claims and the Tribunal was entitled to come to the conclusion it did in relation to whether or not the relevant criteria for protection under s 36(2)(a) or (aa) were met. Ground three has no merit.

2. Ground four is a claim the Tribunal failed to investigate the applicants claim especially the grounds of persecution in Malaysia. First, no particulars attach to the ground. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal; (see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).

3. Second, there is no general obligation on a Tribunal to investigate an applicant’s claims; (see: Minister for Immigration and Multicultural and Indigenous Affairs v SLGB (2004) 207 ALR 12 at [43]). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. The exception is where there is an obvious failure by the Tribunal to make an enquiry about a critical fact, the existence of which is easily ascertained; (see: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]). Ground four has no merit.

4. Ground six is an assertion that the Tribunal failed to provide, in accordance with s 424A of the Act, particulars to the applicant of the information it considered to be part of the reason for affirming the decision under review. Further, it alleges the Tribunal failed to invite the applicant to comment or respond to that information. That assertion has no merit. The Tribunal based its decision on information that was provided to it by the applicant including, information contained in a visa application, the prehearing information form and the oral evidence given at hearing together with country information that was before it. The Court is satisfied this information fell within the exception provided by s 424A(3)(a)(ba), and (b) respectively. The Court is satisfied all procedural fairness obligations under Division Four Pt 5 of the Act were met. Further, the Tribunal was not required to give the applicant a running commentary as to its concerns with her evidence or afford her every opportunity to present her best possible case or improve upon the evidence. Ground six has no merit.

   DETERMINATION

5. As the applicant is unrepresented, the Court has perused the decision record and the material within the Court Book. The Court is unable to ascertain any unarticulated jurisdictional error. In these circumstances the application must be dismissed.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       4 November 2024