CRQ19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 138
•7 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CRQ19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 138
File number(s): SYG 1711 of 2019 Judgment of: JUDGE SKAROS Date of judgment: 7 February 2025 Catchwords: MIGRATION LAW – Judicial Review – Protection visa – where Tribunal’s decision does not disclose any breach of s 424A or s 424AA of the Migration Act – where the Tribunal does not contravene s 425 – where the Tribunal’s decision is not irrational or illogical – application dismissed Legislation: Migration Act 1958 (Cth) ss 5AAA, 5J, 36(2)(a), 36(2)(aa), 65, 424A, 424AA, 425
Cases cited: LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v SCAR [2003] FCAFC 126
Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 29 January 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mills Oakley Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1711 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CRQ19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
7 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application filed on 8 July 2019 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 SKAROS:
INTRODUCTION
By application filed on 8 July 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 13 June 2019. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) in refusing to grant the applicant a Protection (Class XA) (subclass 866) visa (the protection visa) under s 65 of the Migration Act 1958 (the Act).
[1] Pursuant to Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) any proceedings pending before the court immediately before the transition time and to which the Administrative Appeals Tribunal (the Tribunal) was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia on 21 November 2016 on a three-month e-travel authority. She applied for the protection visa on 27 January 2017, stating that she left Malaysia due to ‘political issue and economic issue’ and that she would have ‘no job, cannot support my family and myself’ if she returned.
On 6 March 2017, the delegate refused to grant the applicant the protection visa as they were not satisfied the applicant’s fear of persecution was for any paragraph 5J(1)(a) reason, and found that the applicant’s claims lacked sufficient detail and supporting evidence to satisfy the subsection 36(2)(aa) criteria.
On 7 March 2017, the applicant applied to the Tribunal for a review of the delegate’s decision.
On 6 May 2019, the applicant was invited to a Tribunal hearing. On 13 May 2019, the applicant requested a change of venue for the Tribunal hearing from Sydney CBD to Griffith where she resided. On 16 May 2019, the Tribunal authorised the applicant to appear before it via audio visual link from Griffith and a video conference hearing was scheduled for 13 June 2019, which the applicant attended (CB 97). At the conclusion of the hearing, the Tribunal delivered an oral decision. The Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations and decided to affirm the decision under review.
On 26 June 2019, the Tribunal published a written record of its oral decision.
THE TRIBUNAL’S DECISION
The dispositive issue before the Tribunal was whether the applicant was a person in respect of whom Australia has protection obligations under s 36(2).
The Tribunal set out the legislative criteria for a protection visa, including ss 36(2) and 5J of the Act. It also made note of Ministerial Direction No. 56, and the mandatory consideration of the ‘Refugee Law Guidelines’, ‘Complementary Protection Guidelines’, and DFAT country information, to the extent it was relevant to the decision under consideration.
The Tribunal then considered the claims and evidence before it, that being, the oral evidence and the departmental and Tribunal files. At [19] of its decision, the Tribunal noted that no documents had been presented at the hearing or attached to either file to support the applicant’s claims of any adverse treatment, discrimination or abuse of any sort. The Tribunal noted that neither file indicated that the applicant had, at any time, sought the protection of the Malaysian authorities, police or otherwise.
The Tribunal also noted that the applicant’s responses on the original visa application form contained no information about her residential address, employment history or educational background.
At the hearing, the Tribunal expressed concerns the applicant’s claims for protection were not genuine due to the lack of details provided regarding her life in Malaysia. It was recorded that the applicant did not reply. When reminded this was a review application for a protection visa, the applicant gave oral evidence that she had no one back in Malaysia, as observed in [17] of Tribunal’s decision:
… She continued her father was the only person there. She later changed this evidence by stating that her father was now dead and she had no-one back home and that her best female friend was now married and could no longer help her either. She continued that when she was in Malaysia she worked in a factory making micro-chips for identification tags.
The Tribunal, at [18], reminded the applicant that this review was a ‘second opportunity to state her best case for protection in Australia’ and that it was ‘greatly concerned that her application was not genuine’, and in response, the applicant had repeated that she could not find a job in Malaysia.
The Tribunal found, based on the non-existence of any objective, independent, supportive or corroborative information or government documents or otherwise, that the assertions made in the claim for protection were false and a complete fabrication.
The Tribunal set out the principles in s 5AAA of the Act, which make it clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.
Ultimately, the Tribunal found that the applicant was not a person to whom Australia had protection obligations as she did not meet the refugee or alternative criterion in ss 36(2)(a) and (aa).
CONSIDERATION
The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:
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.
To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2] and LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [15]–[16].
Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 23.
APPLICATION TO THIS COURT
The application before this court, filed on 8 July 2019, raises two grounds of review which have been considered further below.
The applicant also filed an affidavit on 8 July 2019, which merely annexed a copy of the Tribunal’s decision record. As the Tribunal’s decision was included in the Court Book, it was not necessary to take this affidavit into evidence.
In compliance with orders made by a Registrar of this Court, the Minister filed and served the Court Book on 11 September 2019.
Further orders were made by a Registrar of this Court on 18 March 2024 providing for the applicant to file and serve any amended application and written submissions by 10 April 2024. They also provided for the Minister to file and serve written submissions by 17 April 2024.
On 8 April 2024, the applicant filed an affidavit which contained evidence pertaining to why the applicant came to Australia. The evidence included allegations of abuse by her stepmother in Malaysia and an ex-boyfriend. The applicant stated that after her initial hearing she wanted to verify details of her case but the person who assisted her with the translation did not accurately represent her story and instead cited economic reasons as the basis for why she sought protection in Australia.
On 17 April 2024, the Minister filed an outline of submissions addressing the grounds of review and the applicant’s affidavit evidence.
On 29 January 2025, the applicant appeared before the Court by audio visual link at the final hearing. Mr Dennis, a solicitor advocate appeared on behalf of the Minister.
The Minister sought to rely on the material in the Court Book, filed on 11 September 2019. Accordingly, the Court Book was tendered into evidence and marked as Exhibit CB.
The Minister objected to the admissibility of the affidavit filed on 8 April 2024 on the basis that it contained information that was not before the Tribunal. In responding to the Minister’s objection, the applicant said the affidavit contained information that was ‘true, [she has] nothing to hide, and [she] did not get a chance to submit these details to the Tribunal’. The Court upheld the Minister’s objection on the basis that the information and material contained in the affidavit was not before the Tribunal at the time it made its decision. As explained to the applicant at the hearing, the information contained in the affidavit appears to raise claims which were not before the Tribunal and the Court has no power to review the merits of her claims for protection. As such, the affidavit filed on 8 April 2024 is inadmissible and has not been taken into account for the purposes of the judicial review proceedings.
Being mindful that the applicant was unrepresented, the Court explained to her how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
The applicant was guided through her application and was invited to make oral submissions in support of the grounds of review raised in her application.
GROUNDS OF REVIEW
The application for judicial review raises the following grounds (without alteration):
1.The second respondent failed to comply with the mandatory requirement 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.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
2.The Tribunal was not satisfied that I was a person to whom Australia owned protection obligation, the Tribunal engaged in a process of reasoning that was irrational. I never said my father was dead.
At the hearing before the Court, the applicant stated that the reason she did not raise the matters contained in her affidavit with the Tribunal was because she did not speak proper English and did not understand.
Ground one
By ground one the applicant alleges that the Tribunal failed to comply with its procedural fairness obligations in s 424A (or alternatively s 424AA). When asked at the hearing what information she believed the Tribunal had failed to invite her to comment on, the applicant said she provided the information in her affidavit (which the Court did not admit into evidence) and that was what she wanted to raise. When asked why she did not raise this information at the hearing before the Tribunal, the applicant said because, at the time, she did not speak proper English and did not understand she could do so. The Court discussed with the applicant the reasons for the Tribunal’s decision and noted that the Tribunal had found that she (the applicant) did not provide details or evidence of her claims for protection despite being invited to do so by the Tribunal.
When asked why she had stated in her application for judicial review that the Tribunal failed to comply with its procedural obligations under ss 424A or 424AA of the Act, the applicant explained that she had used a migration agent, to whom she paid a service fee, and she has no idea why he wrote this.
A failure to comply with procedural obligations in Division 4 Part 7 of the Act, including s 424A, can establish jurisdictional error on the part of the Tribunal. In the present case, however, the applicant could not assist the Court as to why this ground of judicial review was advanced. The Minister correctly submitted that the applicant had not specified what information enlivened the Tribunal’s obligations under s 424A.
At [14], [18], [19] and [20] the Tribunal records that it expressed its concerns to the applicant regarding the lack of detail in the application about her background in Malaysia, where she resided, her employment and educational background. It also raised concern that the applicant’s claims for protection may have been contrived and that the application was not genuine. None of these concerns were required to be put to the applicant in accordance with the procedure in ss 424A or 424AA as they did not relate to ‘information’ that was the reason (or part of the reason) for the Tribunal affirming the decision under review.
A review of the Tribunal’s decision does not disclose any breach of s 424A or s 424AA on the part of the Tribunal.
As submitted by the Minister, the Tribunal found that the applicant’s claims lacked any real or meaningful detail and there was no corroborative evidence. The Court accepts, as submitted by the Minister, that there is no obligation on the Tribunal to put the applicant on notice of its thought processes or subjective appraisals of the evidence, including ‘the existence of doubts, inconsistencies or the absence of evidence’: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Another matter raised by the applicant which may give rise to jurisdictional error is the allegation that she may not have been afforded a meaningful opportunity to give evidence at the hearing because of her lack of English language proficiency.
In responding to this, the Minister drew the Court’s attention to the response to hearing form (CB 100), which had been signed by the applicant, in which she indicated that she did not require an interpreter. The Minister submitted that in the absence of a transcript or other evidence which indicates that the Tribunal was on notice, or it became apparent at the hearing, that the applicant needed assistance with English, there was no evidence that the Tribunal breached its obligations under s 425.
Section 425 requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments in relation to the issues that arise in the review. The invitation to hearing must be real and meaningful, such that the applicant is given the opportunity to put all her claims before the Tribunal: Minister for Immigration v SCAR [2003] FCAFC 126 at [37]. A failure to provide an interpreter if one is evidently required could amount to a breach of the Tribunal’s obligations under s 425.
The evidence before the Court indicates that the applicant informed the Tribunal that she did not require an interpreter: see the application for review form (CB 72) and the response to hearing form (CB 100). The Tribunal’s decision record does not suggest that the applicant raised any concerns about not being able to participate in the hearing due to her English language proficiency. There is also no evidence before the Court, and the applicant has not claimed, that she had requested an interpreter at any time during the hearing. There is also no evidence before the Court (such as a transcript) which suggests that it was evident (or should have been evident) to the Tribunal that the applicant required an interpreter to meaningfully participate in the hearing.
There is no evidence before the Court which discloses a failure on the part of the Tribunal to comply with any procedural fairness obligation that arises under s 425 of the Act.
Ground one, including the additional interrelated ground raised by the applicant at the hearing, does not disclose jurisdictional error on the part of the Tribunal.
Ground two
By ground two the applicant alleges that the Tribunal’s decision was irrational.
An illogical or irrational decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error.
When invited to speak to this ground, the applicant said she had nothing to say regarding this and that she did not submit her details at the time. When asked if she thought any aspects of the Tribunal’s decision or reasoning was illogical, irrational or unreasonable, the applicant said no.
The Minister’s written and oral submissions contend that the Tribunal’s decision was not irrational or illogical. It was submitted that the Tribunal provided rational and cogent reasons for its findings. In respect of the complaint regarding the Tribunal’s consideration of the evidence about whether or not the applicant’s father was alive, it was submitted that the Tribunal made no substantive finding on the applicant’s specific claim vis-à-vis her father. Rather, the Tribunal’s observation (at CB 128-129, [17]) was one of a number of observations and findings at paragraphs [13] to [21], that collectively, led the Tribunal to conclude that the applicant had provided insufficient evidence to support her claims and that the evidence she had provided did appear to be genuine. It was submitted that the Tribunal’s conclusion that the applicant could not meet the requisite criteria for protection was open to it on the evidence before it.
A fair reading of the Tribunal’s decision indicates that it sought to elicit relevant information from the applicant regarding her claims for protection, but that the applicant was not forthcoming. The Tribunal expressed its concerns about several matters, including an inconsistency in the evidence, the lack of details about the applicant’s background and lack of corroborating evidence. Ultimately, the Tribunal was unable to be satisfied that the applicant met the criteria for protection. The Court accepts the Minister’s submission that this conclusion was open to it for the reasons it gave.
For these reasons, it cannot be said that the Tribunal’s decision was irrational or illogical.
Ground two does not establish jurisdictional error.
CONCLUSION
As none of the grounds raised establish jurisdictional error on the part of the Tribunal, the application for judicial review filed on 8 July 2019 must be dismissed.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 7 February 2025
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