CTW18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 902

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CTW18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 902

File number(s):	MLG 1479 of 2018
Judgment of:	JUDGE RILEY
Date of judgment:	15 August 2024
Catchwords:	MIGRATION – protection visa – Administrative Appeals Tribunal – citizen of Malaysia – applicant claiming harm from his wife’s family for reasons of religion – Tribunal finding he could obtain effective police protection or reasonably relocate – no jurisdictional error disclosed.
Division:	Division 2 General Federal Law
Number of paragraphs:	11
Date of hearing:	15 August 2024
Place:	Melbourne
Advocate for the Applicant:	In person
Advocate for the First Respondent:	Michelle Stone
Advocate for the Second Respondent:	No appearance
Solicitor for the First and Second Respondents:	Australian Government Solicitors Office

ORDERS

MLG 1479 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CTW18
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	15 AUGUST 2024

THE COURT ORDERS THAT:

1.The application filed on 29 May 2018 be dismissed.

2.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,500.

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
(revised from transcript)

JUDGE RILEY:

1. This is an application to review a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the Minister refusing the applicant a protection visa.

2. The applicant is a male citizen of Malaysia. He came to Australia on 29 July 2015 on an electronic travel authority. The applicant applied for the protection visa on 21 March 2016.

3. The applicant claimed in his application form to fear harm from members of his wife's family. That was because the wife had converted from Christianity to Islam to be able to marry the applicant. The applicant claimed that the wife’s family members had planned to kill him and had hurt him badly many times before.

4. The Tribunal conducted a hearing at which the applicant and his wife gave evidence. The Tribunal accepted that the applicant faced harm from his wife’s family.  However, the Tribunal considered that the applicant could get effective protection from the Malaysian police.  The Tribunal also found that the applicant could reasonably relocate within Malaysia as the risk of harm to him was confined to the province of Sabah where the wife’s family lived. The Tribunal noted that the applicant had previously worked elsewhere in Malaysia.

5. The applicant, without the benefit of legal assistance, applied to this court for review of the Tribunal’s decision. The grounds of the application are as follows, with errors as per the original:

   1.My date of birth is 10 April 1985 and I’m born in Tawau, Sabah. Not 14 June 1990 born in Melaka.

   2.My child is born on year 2016, not 2017.

   3.My parents live in Tawau, Sabah; not Melaka. While my wife [name of wife] parents live in Kota Kinabalu, Sabah.

   4.I marry [my wife] in 2012 with the village marriage without legally registered in Malaysia Law or Syariah Law in 2012, that is why [my wife’s] father agreed with the marriage as long as his daughter not CONVERT to Muslim Religion.

   5.In 2015, my wife decided want to convert to Muslim without me forcing her for the reason we want to start having a child. This is because if we illegally married in or without any registration marry in Malaysia/Syariah Law, our village marriage is not Legal and if we have children together without the certificate marriage, the child will be claim as child of wedlock. My claim on this never been mentioned or stated in.

   6.In 2015, we get married in syariah court without [my wife’s] parents consent or his awareness. He (my father in law) and the whole family of my wife don't know of my wife converted to muslim and we marry again in Syariah court.

   7.The syariah court never give us the marriage certificate as my wife did not attend all the Islam classes to fulfill her convertion as a muslim because she still practising her Christianity and don’t want to learn about Islam.

   8.We obtained the marriage certificate in 2016 when I’m in Australia because I paid a lump sum of money and I don’t know how he did it as he was able to issue us our marriage certificate. In my claim, the certificate was forged as I don't know whoever named as witnesses and the name of wali stated in the certificate. And the dowry of RM100 is not known by us and my father-in-law.

   9.I run away before my father in law know about his daughter convertion and also we married in the Syariah court as because he do choke me in 2012 on Christmas Day and he threaten to kill me if there is something happen to his daughter or if I forced or persuade his daughter to convert to Muslim one day.

   10.In my add on claims I do ask for my son to be consider to live and stay here so he can freely choose his religion as this country not strict with religion thing and he have freedom to do when he is older and mature enough. My wife still practice her religion in here Australia and not stresses when she converted just because she needed it to follow the Malaysia Law.

   11.The Facts All above is not been mention when we do the interview with the AAT.

6. It is significant that paragraph 11 of the grounds of application states that all the above facts were not mentioned to the Tribunal. It is not a jurisdictional error for the Tribunal to fail to take into account facts that an applicant has not made known to the Tribunal.

7. It is also significant that the marriage certificate referred to in paragraph 8 of the grounds of review was actually provided to the Tribunal by the applicant himself. The applicant now says that marriage certificate was forged. It follows that the applicant has provided a false document to the Tribunal. That could have consequences for any future application the applicant might make. However, the main point is that none of the matters mentioned in the grounds of application would have made any difference to the decision made by the Tribunal. The Tribunal accepted that the applicant’s wife’s family did pose a real risk of serious and significant harm to the applicant. 

8. The Tribunal considered that the applicant could get effective protection from the Malaysian police. The Tribunal’s reasons for decision record that the applicant acknowledged that he could access police protection, and he did not give any reason why he might be denied police protection.  Moreover, the Tribunal considered that the applicant could reasonably relocate within Malaysia. The applicant’s grounds did not address the issues of police protection or relocation.

9. In addition to the matters set out in his application, the applicant said to the court today that he would have difficulty in Malaysia because of his interfaith marriage. However, the applicant did not raise that claim before the Tribunal. It is not a jurisdictional error for the Tribunal to not consider a claim that was not made.

10. The applicant also said to the court today that he did not tell the Tribunal the matters set out in his grounds of application because he only answered the questions the Tribunal asked. Even if the Tribunal did not ask the applicant if he wished to say anything else, as the Tribunal usually does, it was still possible for the applicant to send in, in writing, everything he wished to say. The applicant knew how to contact the Tribunal because he sent a copy of his allegedly forged marriage certificate to the Tribunal.  In addition, the hearing invitation form invited the applicant to attach to the response to hearing invitation form any new information that the applicant wished the Tribunal to consider. 

11. In any event, I do not consider that there has been any jurisdictional error in the Tribunal’s handling of this matter or in its reasons for decision. Consequently, the application will be dismissed. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Associate:

Dated:       13 September 2024