Cri23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1048
•17 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CRI23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1048
File number: MLG 1994 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 17 November 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicants protection visas – whether jurisdictional error in adverse credibility findings – assertion that witness was not permitted to give evidence before Tribunal – assertion that there were errors in interpretation before Tribunal – whether Tribunal failed to consider evidence – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 424AA, 424A, 425, 425A, 476, 477 Cases cited: BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 13 November 2023 Place: Perth (via Microsoft Teams) First Applicant: The first applicant appeared in person Second Applicant: The second applicant did not participate in the hearing Counsel for the First Respondent: Ms S Liddy Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1994 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CRI23
First Applicant
CRL23
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
17 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
The applicants are citizens of Malaysia who applied for protection visas. A delegate of the Minister decided not to grant the applicants protection visas and the applicants sought merits review of that decision by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the delegate’s decision on 5 June 2017 and the applicants now seek judicial review of the Tribunal decision, pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
For the reasons explained below, the applicants have not established that the Tribunal made a jurisdictional error in making its decision. The application to this Court is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicants last entered Australia in 2013. On 24 April 2015 the applicants applied for protection (subclass 866) visas. The first applicant claimed that she would be kidnapped, attacked, held for ransom or killed by her mother’s former business partner or by criminal gangs with whom the former business partner has connections, if she returned to Malaysia. The second applicant is the husband of the first applicant and he did not raise his own claims for protection.
On 22 April 2016 a delegate of the Minister decided not to grant the applicants protection visas.
On 19 December 2016 the applicants lodged an application to the Tribunal for merits review of the delegate’s decision.
On 29 March 2017 the Tribunal sent to the applicants an invitation to attend a hearing on 27 April 2017. The first applicant attended that hearing along with her representative and her mother who was a witness before the Tribunal. According to the Tribunal’s hearing record, the first applicant was assisted by an interpreter in the Malay language at that hearing. The hearing did not conclude within the available time and a further hearing was held on 25 May 2017. Again, the first applicant attended that hearing with her representative and her mother and was assisted by a Malay interpreter. The second applicant did not participate in either hearing before the Tribunal.
On 5 June 2017 the Tribunal affirmed the delegate’s decision.
SUMMARY OF TRIBUNAL DECISION
The Tribunal accepted that the first applicant’s mother was a businesswoman who had a number of small business interests in Malaysia and had dealings with a particular business partner. However, the Tribunal did not accept that the business partner or his gang attempted to kidnap the first applicant in 2011 or that they still present a threat to her. This finding was made based on inconsistencies that the Tribunal identified in the evidence before it and aspects of the evidence that the Tribunal considered to be implausible, which caused it to have concerns about the first applicant’s general credibility.
The Tribunal considered it to be speculative that three calls from an unknown number from a person claiming to be the first applicant’s uncle, which the first applicant received on the same day as the alleged kidnapping incident, were from a person involved in the alleged kidnapping and did not accept that the alleged calls from an unidentified source provided credible substance to the evidence that she faced kidnapping, ransom or harm.
The Tribunal did not accept that agents of the first applicant’s mother’s business partner were at the shop where the alleged kidnapping took place and therefore did not accept the claim that they made a mess in the shop. Taking into account country information about the effectiveness of the police force in Malaysia and evidence about other occasions on which the first applicant’s mother had approached the police, the Tribunal considered that the failure of the first applicant and her mother to report the claimed attempt to kidnap the first applicant cast serious doubt on the credibility of her claim to need protection from the business partner and his agents.
The Tribunal did not accept that the first applicant had a well-founded fear of persecution or faced a real risk of significant harm on return to Malaysia on the basis that she may face harm from, or be kidnapped by, the business partner or his agents. The Tribunal also considered the first applicant’s claim that there had been a kidnapping attempt on her sister to be far-fetched. The Tribunal considered that evidence of another incident the first applicant relied on to support her claims, namely that someone came to her house looking for her and her siblings, was not indicative of the first applicant or her family being at risk of harm from the business partner or his agents.
The Tribunal considered that if the business partner had intended to harm the first applicant’s mother or those associated with her, he had considerable opportunity to do so while she was still in Malaysia. The Tribunal considered it far-fetched that the business partner would intend to harm the first applicant’s mother or those associated with her in the future when he had not done so in the past.
In considering the first applicant’s credibility, the Tribunal took into account that she did not raise any claims to need protection based on what happened in 2011 when she visited Australia in 2012. The Tribunal also noted that following her arrival in July 2013 she did not apply for protection until 2015, almost two years after her arrival in Australia, for much of which she was in the community unlawfully. The Tribunal took into account the first applicant’s evidence as to why she did not make a claim for protection sooner but did not accept this explanation and considered that if the first applicant had concerns about her need for protection, she would have sought protection at the earliest opportunity.
The Tribunal found that the applicants did not meet the criteria for a protection visa in s 36 of the Migration Act and affirmed the delegate’s decision.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 2 July 2017, which is within 35 days of the date on which the Tribunal decision was made, as required by s 477(1) of the Migration Act.
The applicants’ application to the Court contains lengthy text identifying principles and extracts of the Tribunal reasons. The grounds appear over five pages of the application and are not reproduced in full in this judgment. The structure and content of the grounds can be summarised as follows:
(a)The first part of the ground refers to legislation and most notably includes an extract of s 36(2) of the Migration Act. No jurisdictional error is asserted.
(b)Under the heading ‘Background’, biographical information is set out in relation to the applicants, including their birth, marriage, arrival in Australia and immigration history, application for a protection visa and birth of their child. No jurisdictional error is asserted under this heading.
(c)The next heading in the ground is ‘AAT Decision’. Under this heading, the applicants have extracted various parts of the Tribunal reasons that mostly appear under the subheadings ‘Credibility’ and ‘Attempted kidnap of the applicant’. The applicants have not asserted any jurisdictional error under the subheading, but they have emphasised certain findings made by the Tribunal. The emphasised findings are:
(i)the Tribunal’s finding at [34] of its reasons that ‘[o]n the evidence before it the Tribunal is not satisfied in the applicant’s general credibility and does not accept the applicant’s claims in this respect are for the following reasons’;
(ii)the Tribunal’s finding at [37] of its reasons that ‘the Tribunal does not accept the applicant’s account that men came to the shop or that she was the subject of a foiled kidnap attempt is credible’;
(iii)the Tribunal’s finding at [40] of its reasons that it ‘has looked at these events in their totality, and in the context of the issues discussed below, but does not accept [the business partner’s] agents came to the shop. It follows the Tribunal does not accept the men allegedly made a mess in the shop’; and
(iv)in relation to the first applicant’s claim that there was an attempted kidnap of her sister, the Tribunal’s finding at [53] that ‘[g]iven that it is claimed that [the business partner] had the resources of a gang at this disposal, the Tribunal would expect that a more successful effort to kidnap the child would be put into action if intended’.
(d)The next heading in the ground is ‘Establishing the facts’. Under this heading, the applicants have extracted various observations about assessing the credibility of applicants seeking protection and giving applicants the benefit of the doubt in assessing refugee claims. Again, no jurisdictional error is asserted.
(e)The next heading in the ground is ‘The presumption of innocence’. Under this heading the applicants referred to the presumption of innocence as a fundamental principle of the common law, referring to a statement of the United Nations Human Rights Committee and policies in relation to the requirement for Commonwealth employees to consider the right to the presumption in innocence when working on certain legislation, policies and programs. The applicants assert that the Tribunal’s finding that their account of events is not credible is an opinion only and in contradiction to the presumption of innocence.
(f)The final heading in the ground is ‘Derogation’. Under this heading, the applicants refer to various articles of the International Covenant of Civil and Political Rights (ICCPR) and the Criminal Code Act 1995 (Cth) in relation to proof of criminal responsibility. The applicants assert that the Tribunal decision is speculative at best with no proven responsibility to suggest the applicants are not credible. The applicants also assert that in reaching its decision, the Tribunal used words such as ‘not credible’ and referred to ‘self incrimination paragraphs of the hearing’ and as a result the decision deprived the applicants of the presumption of innocence and is in breach of article 14 of the ICCPR.
The applicants did not file any amended application, any further evidence or written submissions prior to the hearing, despite an Order made on 7 March 2018 requiring that any such documents be filed 28 days before the hearing. The Minister filed submissions ahead of the hearing as required by the Order.
The first applicant appeared at the hearing on 13 November 2023 as a self-represented litigant. The second applicant did not appear.
At the hearing, I explained to the first applicant the role of the Court in judicial review proceedings, explained the need to establish jurisdictional error and gave examples of types of jurisdictional error that sometimes arise in migration cases. I observed to the first applicant that it appeared from her ground that she was challenging the Tribunal’s credibility findings, but that it was not entirely clear the basis on which she was doing so. I explained that the Court would be assisted if the first applicant could clearly explain the jurisdictional error that she believes the Tribunal made. I stood the matter down briefly to enable the first applicant to consider what she would like to say in her oral submissions, taking into account the information provided to her at the hearing.
When the hearing resumed, the issues raised by the first applicant in her oral submissions were considerably different to the issues raised in her written application. In assessing the application below, I have had regard to the issues raised in the application as well as the issues raised in the first applicant’s oral submissions.
ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
The role of a court in a judicial review proceeding is to ‘rule upon the lawfulness or legality of the [Tribunal’s] decision’ by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if the applicant establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Disagreement with the Tribunal decision, even emphatic disagreement, does not of itself establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
CONSIDERATION OF ISSUES RAISED IN APPLICATION AND SUBMISSIONS
Tribunal’s credibility findings
Credibility findings made by an administrative decision maker can be challenged in a judicial review proceeding on recognised grounds, including but not limited to a failure to afford procedural fairness, reaching a finding without a logical or probative basis or unreasonableness: see, for example, CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [38].
In challenging the Tribunal’s adverse credibility findings, the applicants have not identified the type of jurisdictional error that they believe the Tribunal made. Rather, they have asserted that the Tribunal’s adverse credibility findings were made contrary to a presumption of innocence and against the right against self-incrimination. Neither of these allegations establishes jurisdictional error.
The presumption of innocence has no role to play in the present proceeding. The applicants were not facing any criminal charges and gave no evidence that they had been accused of any crime. Nor does the right against self-incrimination arise in this proceeding. There is no evidence before the Court that the applicants or the first applicant’s mother gave any evidence that could be seen as self-incriminating in relation to a crime or civil penalty provision.
Rather than invoking concepts that are more relevant to a criminal law jurisdiction, my understanding of the ground raised by the applicants as a whole appears to be an attempt to assert that the Tribunal should have believed their account and should not have relied on matters in their own evidence against them.
No jurisdictional error is established on this basis. The Tribunal summarised the principles to which it had regard in assessing the applicants’ credibility at [12]-[17] of its reasons, where it said:
12.The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
13.The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
14.When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
15.The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
16.However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
17.The Tribunal notes that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).
The Minister also summarised some of the relevant principles relating to the assessment of credibility in his submissions, including that:
(a)It is for an applicant to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [76].
(b)The Tribunal is not required to accept uncritically any and all claims made by an applicant: SZIWK v Minister for Immigration and Citizenship [2007] FCA 168 at [20].
(c)In determining whether an applicant has a well-founded fear of persecution, the Tribunal may need to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 281-282; [1996] HCA 6.
There is nothing in the Tribunal decision to suggest that it did not apply the principles it identified in its reasons or the principles identified in the Minister’s submissions in conducting its review.
I accept the Minister’s submission that the credibility findings made by the Tribunal were open to it on the material before it. It was open to the Tribunal to identify aspects of the evidence before it that were inconsistent or implausible and rely on these to make adverse credibility findings in the way that it did. It did not need to have evidence before it to positively disprove the applicants’ claims before rejecting aspects of those claims.
No jurisdictional error is established based on the Tribunal’s adverse credibility findings.
Tribunal’s reliance, in making adverse credibility findings, on the failure to make a police report of the alleged kidnapping
In her oral submissions to the Court, the first applicant submitted that she was not happy with the Tribunal because it questioned her about whether her mother made a police report on the day of the alleged kidnapping incident. The first applicant submitted that she was only 16 years old at the time and her mother was a single parent who had to take care of her and who had to hire bodyguards to provide protection to her. At the time, the first applicant could not provide an answer as to why her mother did not provide a police report.
The first applicant’s submissions appear to refer to the Tribunal’s reasons at [41]-[45] where the Tribunal took into account, in making adverse credibility findings, that neither the first applicant nor her mother reported the alleged attempted kidnapping to the police.
The Tribunal said at [41]-[42]:
41.In considering the credibility of the applicant’s claim that there was an attempt to kidnap/harm her, the Tribunal has taken account of her statement that neither she nor her parents made a report to the police of this incident. The applicant told the Tribunal that it did not come to her mind to think of the police because it was the job of the bodyguard to looks after her.
42.Accepting the applicant was a teenager at the time of this claimed incident, the Tribunal made enquiries with the applicant’s mother. The applicant’s mother in her witness testimony stated that she did not make a report of this incident but asked the bodyguard to step up security. The applicant’s mother further stated she did not file a police report because police really didn’t care. She told the Tribunal she believed the police did not care because she had filed several police reports about burglaries and disturbances in the past but they took no action. The applicant’s mother said that she thought it was not worth taking the kidnap matters to police because she knows the police are always late in taking action, and take action only after an incident, and that is why she puts her trust in the bodyguards.
The Tribunal expressed ‘serious doubts about the credibility of this explanation given the claimed seriousness of the incident’ at [43], before proceeding to set out country information in relation to the police force and judiciary in Malaysia.
The Tribunal then at [44] and [45] recorded its suggestion that the first applicant or her mother would have reported the incident to the police if they thought the first applicant was at risk of harm and the first applicant’s response to that suggestion. The Tribunal said:
44.Given the country information above, the Tribunal suggested that it considers that if there had been an attempt to kidnap/harm the applicant, or if the applicant’s mother had concerns that an incident indicated the applicant was at risk of harm, the applicant/the applicant’s mother would have made a statement to the police about what occurred to enable investigation which may assist in protecting the applicant in future.
45.In response, the applicant recalled two incidents when her mother’s bag was stolen but despite her mother reporting this to police, they were very slow in responding and told her mother that if it happens again to call them. She stated she had read reports where children were kidnapped and died because police took no action and this is why her mother employs bodyguards. The Tribunal has considered this response but gives weight to the independent advice of DFAT above that the RMP are a professional and effective police force and the Tribunal considers that the applicant, as the daughter of a well-connected, successful business woman, had access to this police force and a judicial system which generally operates under the rule of law. In these circumstances, the Tribunal considers that the applicant’s failure to report a claimed attempt to kidnap her, casts serious doubt on the credibility of the applicant’s claim to need protection from [the business partner] and his agents.
The Tribunal reasons show that it was cognisant that the first applicant was a teenager at the time of the alleged incident, expressly acknowledging this at [42]. The response also shows that the first applicant was able to provide an answer to the Tribunal’s questions about why the incident was not reported to the police and the Tribunal took her answer into account, but it did not accept the explanation.
There is no transcript of the Tribunal hearing before the Court so the only indication of the types of questions that the Tribunal asked the first applicant is what can be inferred from the Tribunal’s reasons. There is nothing in this to suggest that anything about the Tribunal’s questioning of the first applicant about why she or her mother did not report the matter to the police was inappropriate. It was open to the Tribunal to question the first applicant about this and to take her responses into account in the manner that it did.
The first applicant’s complaint appears to be an expression of disagreement with the Tribunal decision and does not amount to jurisdictional error.
Tribunal’s alleged failure to allow the applicant to bring her mother to the hearing to give evidence
In her oral submissions, the first applicant submitted that the Tribunal did not give permission for her to bring her mother to the hearing as a person who could provide evidence.
This assertion is not established on the evidence before the Court. As indicated above, the Tribunal convened a hearing in this matter on two separate occasions. The court book contains a hearing record in relation to each of those hearings. The hearing record for the hearing held on 27 April 2017 records that the first applicant’s mother attended the hearing as a witness. The hearing record for the hearing held on 25 May 2017 records that the first applicant’s mother attended the hearing for ‘support’.
The Tribunal recorded at [3] of its reasons that it received oral evidence from the first applicant’s mother and it recorded at [27] of its reasons that it explained to the first applicant at the hearing on 27 April 2017 that her mother’s statutory declaration and oral evidence would be taken into account in assessing the first applicant’s claims.
The Tribunal considered evidence provided by the applicant’s mother in reaching its decision. In particular:
(a)the Tribunal summarised the evidence in the mother’s statutory declaration at [22] and [23] of its reasons;
(b)the Tribunal at [30] of its reasons accepted certain facts about the first applicant’s mother’s business interests and political connections, based on the evidence before it, which the Tribunal expressly stated includes the mother’s statutory declaration;
(c)the Tribunal considered at [35] and [36] of its reasons oral evidence of the first applicant’s mother about the alleged kidnapping of the first applicant, which it considered to be inconsistent with the evidence given by the first applicant and which it invited the first applicant to comment on pursuant to the process set out in s 424AA of the Migration Act;
(d)the Tribunal considered at [40] of its reasons the first applicant’s mother’s evidence that after the first applicant left the shop on the day of the alleged kidnapping, her business partner’s agents created a disturbance and mess at the shop;
(e)the Tribunal at [42] of its reasons considered the first applicant’s mother’s evidence as to why she did not report the alleged attempted kidnapping of the first applicant to the police; and
(f)the Tribunal considered the first applicant’s mother’s evidence about the alleged attempted kidnap of the first applicant’s sister at [52] and [53] of its reasons.
It is clear from this summary that the Tribunal allowed the first applicant’s mother to give evidence at the hearing and had regard to that evidence in reaching its decision. The first applicant’s oral submission in relation to this issue does not establish jurisdictional error.
Alleged interpretation errors
In her oral submissions, the first applicant submitted that the Tribunal did not provide the correct interpreter, providing an Indonesian interpreter instead of a Malay interpreter. The first applicant submitted that some words and sentences were not interpreted correctly.
The first applicant’s assertion that the Tribunal provided an Indonesian interpreter instead of a Malay interpreter is not established on the evidence before the Court. The hearing record for the hearings held by the Tribunal on 27 April 2017 and 25 May 2017 both record that the first applicant was assisted by a Malay interpreter and this was also recorded at [3] of the Tribunal’s reasons.
At the hearing before the Court, I noted that there was no evidence before the Court of interpretation errors at the Tribunal hearing and I asked the first applicant why she believed that there were interpretation errors made at the hearing and whether she had obtained a transcript. I also explained to the first applicant that the interpretation did not need to be 100% accurate and that when I consider whether errors in interpretation amount to jurisdictional error, I need to look at whether she was denied a fair hearing because of any interpretation errors. The first applicant requested that I stand the matter down briefly so that she could consider her response and I agreed to this. When the hearing resumed the first applicant did not address the alleged errors in interpretation.
The circumstances in which defective interpretation can amount to a denial of procedural fairness in a migration hearing before the Tribunal were considered by the Federal Court (Edelman J) in BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508 (BZAID). His Honour summarised the following principles at [52]:
(1)interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;
(2)whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;
(3)in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;
(4)where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;
(5)where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;
(6)where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;
(8)however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.
Taking into account these principles, there is nothing before the Court to suggest that there may be jurisdictional error on the basis that any interpretation errors at the hearing before the Tribunal denied the applicants a fair hearing. I make the following observations.
(a)There is no evidence before the Court to indicate that any interpretation errors were made at either hearing before the Tribunal and, without evidence, I cannot find that there was jurisdictional error based on interpretation errors.
(b)Further, the submissions that the first applicant made from the bar table in relation to interpretation errors were vague and lacking in detail. The first applicant did not say anything to suggest that she was denied a fair hearing because of interpretation errors, or that she would be able to establish jurisdictional error, taking into account the principles summarised in BZAID, if given a further opportunity to adduce evidence. In particular, at its highest, the first applicant’s submission is that some words and sentences were not interpreted correctly. The first applicant made no submission that she was unable to understand what was being said or that she was unable to effectively participate in the Tribunal hearing because of the interpretation errors.
(c)There is also nothing in the Tribunal reasons to suggest that the first applicant may have been confused or unable to answer questions at the hearing in a way that may suggest the possibility of interpretation error.
The applicants have not established that they were denied procedural fairness on the basis of any issues with the interpretation at the Tribunal hearing.
Whether Tribunal failed to consider evidence in relation to phone calls
The first applicant submitted that the Tribunal did not take evidence that, on the day of the alleged attempted kidnapping incident, one of the business partner’s agents called her and said he was her relation.
The Tribunal clearly considered and had regard to this evidence at [38] and [39] of its reasons, where it said:
38.In considering whether there was an attempted kidnap/harm of the applicant, the Tribunal has taken into account the applicant’s evidence that after she arrived at her aunt’s house on the day of this incident, she received three telephone calls from someone she did not know, claiming to be her uncle and asking where her father was. The applicant told the Tribunal she feels it was [the business partner’s agent] because the worker at the shop said he asked for her number, and because the calls came on the day of this incident.
39.While the Tribunal notes the applicant stated she remained quiet in these calls and hung up, the caller had time to speak and in that time he made no threats to the applicant. The Tribunal considers it purely speculative that the alleged calls came from [the business partner’s agent] or that they were indicative that the caller intended harm to the applicant. In the context of the insubstantial and speculative evidence of an attempted kidnap considered above, the Tribunal does not accept that cumulatively these alleged calls from an unidentified source provides credible substance to the evidence that the applicant faced kidnapping, ransom or harm. Further, the Tribunal has not accepted below that the applicant received anonymous telephone calls from [the business partner’s] agents.
The first applicant’s submission to the Court appears simply to be an expression of disagreement with the Tribunal’s finding. This does not establish jurisdictional error. It was open to the Tribunal, on the evidence before it, to make the findings that it made in relation to this evidence for the reasons that it gave.
Submission in relation to business and threat for money
In her reply submissions, the first applicant referred to submissions made by Counsel for the Minister that the first applicant’s mother’s business did not drop and that her business partner did not threaten for money. The first applicant submitted that there was a police report in relation to this.
The first applicant appears to be responding to a submission advanced by Counsel for the Minister to the effect that the Tribunal found that the mother’s business relationship had not broken down and that the business partner did not exploit the family or threaten them in any way. Counsel for the Minister further submitted that, because of this finding, there was no requirement for the Tribunal to make factual findings on some of the first applicant’s mother’s more specific claims, because the factual contention on which each of those claims rested fell away and were subsumed in the Tribunal’s finding of greater generality.
The first applicant’s reply submissions do not establish jurisdictional error. The finding of the Tribunal referred to in the Minister’s submissions accurately reflects a finding at [63] of the Tribunal’s reasons. The Tribunal was plainly aware of the first applicant’s evidence that her mother reported some of the alleged incidents involving her business partner to the police as it referred to this evidence at [46] of its reasons. The Tribunal’s finding reflects its adverse credibility assessment in relation to the first applicant’s evidence.
Request to provide new evidence
In her reply submissions, the first applicant also submitted that she would like to submit information and evidence that if she goes back to Malaysia she is in danger. I did not give the first applicant an opportunity to provide evidence of this nature. As I explained to the first applicant at the hearing, the Court does not consider whether she meets the criteria for a protection visa and instead considers whether the Tribunal made a jurisdictional error in reaching its decision. New evidence about the first applicant’s claims for protection, which was not provided to the Tribunal, is not relevant to the issue for the Court’s determination, namely, whether the Tribunal made a jurisdictional error.
Other matters raised in the Minister’s submissions
The Minister’s written submissions address matters beyond those raised in the applicants’ ground. Most of the issues raised in the Minister’s submissions have been addressed already in the context of considering the applicants’ grounds and the submissions advanced by the first applicant at the hearing. The Minister also submitted that the applicants had been afforded procedural fairness.
The Minister submitted that the Tribunal complied with its procedural fairness obligations under Division 4 of Part 7 of the Migration Act. It invited the applicants to attend a hearing in a manner which complied with its obligations under ss 425 and 425A of the Migration Act. The first applicant attended the hearing to give evidence and present arguments and was assisted by an interpreter. The Minister submitted that the applicants were on notice from the delegate’s decision and the Tribunal’s questions at the hearing that the credibility of the first applicant’s claims would be a determinative issue on the review. The Minister also submitted that the Tribunal complied with its obligations under ss 424A and 424AA of the Migration Act in relation to an aspect of the first applicant’s mother’s oral evidence that amounted to information that might be the reason or part of the reason for affirming the delegate’s decision.
I accept these submissions, which accurately reflect the evidence in the court book. There is nothing in the evidence before the Court to suggest that the applicants were not afforded procedural fairness by the Tribunal.
CONCLUSION
The applicants have not established that the Tribunal made a jurisdictional error in making its decision. The judicial review application is therefore dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 17 November 2023
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