CUQ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 628
•17 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CUQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 628
File number(s): MLG 1499 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 17 July 2024 Catchwords: MIGRATION – protection visa - application for review of decision of the Administrative Appeals Tribunal – where applicant made generalised allegations of error which were not developed or particularised – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss. 36, 65, 474, 476) Cases cited: BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
Craig v South Australia [1995] HCA 58
Minister for Immigration and Citizenship v SZNCR [2011] FCA 369
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 10 July 2024 Place: Melbourne The Applicant: Appearing in person Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1499 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CUQ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
17 JULY 2024
THE COURT ORDERS THAT:
1.The application filed 30 May 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
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 MANSINI
The Applicant is a citizen of Malaysia who sought a protection visa on the basis of claims to fear harm from his family due to his marital circumstances.
The Applicant now seeks judicial review of a tribunal decision to affirm an administrative decision to refuse a protection visa.
For the reasons that follow, the application must be dismissed.
CONTEXT
On 28 October 2015, the Applicant arrived in Australia on a UD-601 electronic travel authority visa.
On 25 January 2016, the Applicant applied for a XA-866 protection visa, which was refused by a delegate of the First Respondent on 30 October 2017.
On 13 November 2017, the Applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision. In the course of that review, the Applicant attended two hearings before the Tribunal with the assistance of an interpreter on both occasions (the first being adjourned due to difficulties in communication with the interpreter).
On 7 May 2018, the Tribunal decided to affirm the delegate’s refusal decision and provided the Applicant with written reasons for the decision.
APPLICATION BEFORE THIS COURT
On 30 May 2018, this application for judicial review was filed with a short accompanying affidavit. By the initiating application, the Applicant identified 8 points under the heading “grounds of application” in the following terms:
1.I came to Australia for visitor visa purpose and applied for protection visa
2.If I return to Malaysia the gangster can find me and my family and them will kill me and do something to my family.
3.I have little baby born here (Australia) last year this situation make me worried if I return to my country
4.The member did not make proper assasment and consideration and did not make a desission according to the actual situation of defendant (Applicant)
5.The member has made the decission based on the fact finding from the internet source which is not current and relevent
6.I am not really focus to remember thing happen during hearing sesion
7.I got nervous to answer the question during hearing session
8.I am not ready to return on my country because it was unsafe situation for me and my family
(sic.)
On 17 July 2018, a response was filed on behalf of the First Respondent by which it contended that the decision of the Tribunal was not affected by jurisdictional error.
Various procedural orders were then made. Most recently, orders made by the Court on 1 May 2024 directed the Applicant to file and serve any amended application with proper particulars of the grounds of the application, an outline of written submissions and any additional evidence on which he sought to reply by 4.00pm on 19 June 2024. The Applicant did not file and serve any further materials in accordance with the 1 May 2024 orders or at all.
The First Respondent filed and served on the Applicant a court book, an outline of submissions and filed a list of authorities.
The matter proceeded to final hearing before the Court as presently constituted on 10 July 2024. The Applicant appeared in person and the First Respondent was represented by a solicitor. At the outset of the hearing, the process and role of the Court was explained to the Applicant, with the assistance of an interpreter. It was explained to the Applicant that he would be given the opportunity to make oral submissions at the hearing, however the Applicant did not elect to elaborate on his originating application.
This application was heard concurrently with another application for judicial review lodged by the Applicant’s wife. The originating materials are essentially the same and the cases bear a number of factual and legal similarities but nonetheless are separate and distinct applications for judicial review of separate and distinct Tribunal decisions in relation to separate and distinct visa applications. Accordingly, the reasons in each application are prepared separately.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s.474 of the Migration Act 1958 (Cth) (Act) is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia [1995] HCA 58 as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20].
The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provide (and, at the relevant times, provided) that “a” criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
An administrative decision-maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
CONSIDERATIONS
Grounds numbered 1, 2, 3 and 8
Point 1, 2, 3 and 8 of the grounds of the application to this Court do not articulate grounds of jurisdictional error and are properly characterised as an invitation to the Court to redetermine the application before the Tribunal on its merits. As was explained to the Applicant at the hearing, to do so would be beyond the power or scope of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [31].
Grounds 6 and 7
Points numbered 6 and 7 of the grounds of the application were understood to relate to whether the Applicant was afforded proper opportunity to present his case and participate in the hearings before the Tribunal. The Court was taken to a decision in Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 (SZNCR) where, at [30], it was held that to succeed in such claim the applicant must demonstrate that they were unfit in the sense of being unable to give evidence, present arguments and answer questions in the course of the hearing. It was not disputed that the initial hearing was adjourned due to interpretation difficulties and also that the Applicant was afforded another hearing with another interpreter. It was not particularised as a ground of jurisdictional error but, for completeness, the materials before the Court are supportive of a finding that the Applicant was fairly afforded another opportunity to present his case unimpeded by language difficulties. There was no particular claim nor evidence of physical or mental incapacity before the Court of the kind articulated in SZNCR and no basis on the materials to find an error in the procedure or approach adopted by the Tribunal in this respect.
Grounds numbered 4 and 5
Points 4 and 5 of the grounds of the application articulated allegations of error in the Tribunal’s assessment and consideration of the Applicant’s claims and error in its reliance on facts from an internet source.
The Applicant did not identify any particular paragraphs of the decision said to be infected by an error in the Tribunal’s assessment or reliance on an incorrect internet source. He declined to elaborate when invited to do so at the hearing.
In examining the Tribunal’s reasons, it is apparent that the decision maker accepted certain of the Applicant’s claims – namely, that he was faced with personal problems while in Malaysia in so far as it concerned his relationship with his wife (at the relevant time, his girlfriend) and his family because they disapproved of their relationship and because the Applicant’s family had their own-choice candidate for the Applicant to marry. The Tribunal also accepted that because of the Applicant’s relationship with his wife, his wife has had a difficult relationship with her parents. Further, it was accepted that since their arrival in Australia the Applicant and his wife were now parents of a child. The Tribunal also accepted the Applicant’s evidence and that of his wife that they were legally married and should be considered a married couple and would be considered legally married in accordance with Syariah law as it applied in Malaysia and in their particular state: at [43] and [45] of the reasons.
However, the Tribunal expressly considered the Applicant’s version of events as submitted at the hearing before it raised certain issues of credibility: at [43] of the reasons. Particular aspects of the Tribunal’s reasons reflected that it did so by reference to country information and sources of information about the local laws that were before it:
(a)Contrary to the Applicant’s claims, the Tribunal also found that he and his wife would encounter no issues in seeking to register their marriage if they wished to do so upon return from Malaysia in the future: at [45] of the reasons;
(b)In relation to the Applicant’s claims to fear harm from the family (and in particular the brother of the woman he was proposed to marry by arrangement between the families), the Tribunal accepted that he, his wife and child could face familial threats but rejected these claims by reference to country information that they could access police protection if they should so require or request and that DFAT’s assessment of the Malaysian police was of general professionalism and effectiveness and overall that the authorities are effective in Malaysia: at [46] to [48] of the reasons; and
(c)The Tribunal rejected the Applicant’s claims about the operation of Shariah law and, on this basis, concluded that the Applicant would have been afforded the assistance of religious authorities if he required it and further found no religious or legal impediments to the Applicant’s marriage to his wife while in Australia as to present a problem of recognition upon return: at [49] of the reasons.
To the extent that the Applicant sought to contend that these findings were not available because the Tribunal had erred in its application of or misunderstood the country information on which they were based, that claim was not developed before the Court and there is no sound basis to make any such finding. The Tribunal gave logical reasons for its rejection of the Applicant’s claims and those findings were open for the Tribunal to make on the materials before it. There is no discernible jurisdictional error in this respect.
RESOLUTION
For the above reasons, the application does not establish any error of jurisdiction and must be dismissed with costs fixed in the amount of $6,000.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 17 July 2024
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