CWB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 214
•16 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CWB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 214
File number: MLG 1368 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 16 March 2022 Catchwords:
1 MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal that affirmed a decision of a delegate of the Minister refusing to grant the applicants protection visas – first applicant claimed to leave Malaysia because he lost his business and had been beaten by loan sharks – the Tribunal found that the first applicant fabricated claims in order to seek protection – no error arising from Tribunal’s decision – application dismissed
Legislation: Migration Act 1958 (Cth) ss 5J, 36, 424A, 424B, 425, 425A, 476 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 16 March 2022 Place: Sydney Counsel for the Applicants: The Applicants appeared in person Solicitor for the Respondents: Ms M Richardson of Sparke Helmore ORDERS
MLG 1386 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CWB17
First Applicant
CWC17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
16 MARCH 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application filed on 26 June 2017 is dismissed.
3.The first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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 GIVEN:
By an application to show cause filed with this Court on 26 June 2017, the applicants seek review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 June 2017. That decision affirmed a decision of a delegate of the first respondent (delegate) refusing to grant them protection visas (visas).
Background
The applicants are citizens of Malaysia who arrived in Australia on 2 September 2016 travelling on Electronic Travel Authority visas (Court Book (CB) 76). On 13 September 2016 the applicants applied for the protection visas. The first applicant claimed he had left Malaysia because he had lost his business and had been beaten by loan sharks (CB 30-33).
On 11 November 2017 the delegate refused to grant the applicants the visas. The delegate found that the applicants’ claim to fear harm was not for one of the reasons set out in s 5J(1)(a) of the Migration Act 1958 (Cth) (Act) such that they did not meet the criterion for the grant of the visa at s 36(2)(a) of the Act, and that the applicants could access effective state protection such that they did not meet the criterion for the grant of the visa at s 36(2)(aa) of the Act (CB 75-83).
On 22 November 2016 the applicants applied to the Tribunal for review of the delegate’s decision (CB 84-85).
On 19 April 2017 the Tribunal invited the applicants to attend a hearing on 10 May 2017, which only the first applicant attended and at which he gave evidence with the assistance of an interpreter in the Malay language (CB 90-98).
On 18 May 2017 the Tribunal wrote to the applicants pursuant to s 424A of the Act and put to them that movement records indicated that while they were granted the visas on 21 June 2016 they did not arrive in Australia until 2 September 2016, and that the Tribunal might find that this behaviour was not consistent with their claims to fear harm in Malaysia (CB 100-101).
On each of 26 and 30 May 2017 the applicants responded to the Tribunal’s s 424A letter (CB 102-103).
On 2 June 2017, the Tribunal affirmed the decision under review (CB 106-113).
Tribunal hearing
As noted above, the first applicant attended the Tribunal hearing, the second applicant (who is his wife) not making any specific protection claims of her own. In that regard, the Tribunal’s decision is generally expressed in terms of a single applicant, being the first applicant husband. In these reasons for judgment, any references singularly to the applicant are also to be taken as being a reference to the first applicant.
The Tribunal summarised its discussion with the applicant about his arrival in Australia, his work history and his familial and marital status. The Tribunal recorded the applicant as saying that he owed a lot of money and needed to support his children, that he was in Australia because the Malaysian economy was bad and that life in Malaysia would be difficult because he could not pay his debts. The Tribunal then summarised the applicant’s evidence and its various exchanges with him regarding his claims. The Tribunal found the applicant’s evidence at hearing in support of his claims to be unconvincing. The Tribunal found that the applicant was not able to plausibly explain changes in his evidence which raised claims not previously made.
The Tribunal noted that it had put to the applicant at hearing certain information about the applicant’s tourist visa application and the period of time between that tourist visa being granted and the applicant departing Malaysia, during which he had claimed to have been threatened and beaten by loan sharks. The Tribunal found that the delay in departing as against the alleged circumstances was not consistent with the applicant’s claimed fear of harm which led it to reject the applicant’s version of why he came to Australia as being untrue.
The Tribunal found that the applicant had fabricated his claims in order to seek protection. The Tribunal did not accept that the applicant had owned a restaurant, borrowed money and then been beaten and threatened when he failed to repay it. Accordingly, the Tribunal rejected the applicant’s claims to have suffered any previous harm in Malaysia, and did not accept that there was a real chance that he would suffer serious harm in the reasonably foreseeable future, because of the debt that he owed to a specifically named person, or from loan sharks, the police, or anyone else.
The Tribunal considered the applicant’s claims relating to the Malaysian economy, which it was prepared to accept was bad, but found that there was no evidence to indicate that there was a real chance the applicant would be denied access to work, or that he would be discriminated against for one of the reasons prescribed in s 5J of the Act which would prevent him from obtaining or maintaining employment. The Tribunal did not accept that the applicants satisfied the s 36(2)(a) criterion. Nor, for the reasons that it set out, in particular relating to the economic claim, was the Tribunal satisfied that the applicants met the complementary protection criterion.
Current application
By their application to this Court the applicants seek judicial review of the Tribunal’s decision pursuant to s 476 of the Act, and raise the following three grounds of review (errors in original):
1.Decision was not taken in fairly manner. Member suggested that my claim of protection visa is not genuine. I do not agree with the decision of member that loan sharks are not a danger to my life. Alex (loan shark) is very power full there, even police keeps friendship with him and his gang. He feeds police to not take any action against them. Alex and his gang is my real enemy and they can harm my family and me if I go there. His network is very strong and he is a real threat for my family and me. Member’s decision is totally based on false perception and prejudice.
2.Due to my weak financial situation I had to borrow money from local lenders to start business. Unfortunately loan shark took over my business and all belongings of business. They threatened me many times and tried to harm me. On 21/06/2017 my wife gave birth to a baby girl by caesarean operation. Our entire family lives will be in danger in Malaysia.
3.I am not happy with the decision of AAT and DIBP. My intention of stay in Australia is to solely to avoid any physical harm to my family and me from loan sharks of Malaysia. Tribunal should have investigate my matter further and consider my application of protection visa. At least I should have given temporary protection visa to stay here and avoid chance of harm from loan sharks.
Both applicants appeared before me this afternoon, using the Microsoft Teams platform and with the assistance of an interpreter in the Malay language. The Minister was represented by a solicitor. The connection appeared to be clear and without any technical difficulties. The parties and the interpreter did not appear to have any difficulty in understanding one another, nor engaging with the Court. That being said, on many occasions the applicants sat in silence when asked questions and did not respond to the Court unless pressed to do so.
On 21 February 2018 a Registrar of this Court made orders by consent which provided, among other things, that the applicants file and serve any amended application 28 days before the final hearing. The matter was brought into my docket on 27 October 2021 and listed for hearing in January 2022. By orders made on 27 October 2021, the applicants were again directed to file any amended application up to 14 days before today’s hearing, which I note was then moved from the January fixture for reasons pertaining to COVID-19. Accordingly, the applicants have had at least two notified opportunities to amend their application, neither of which they have utilised. Similarly, the applicants have not filed any written submissions in the matter. The Minister filed written submissions on 11 January 2022 as ordered.
At the outset of the hearing, I explained to the applicants the limitations of the Court’s jurisdiction in relation to merits review and the granting of visas and they each indicated that they understood. Also at the outset of the hearing, and because only the first applicant had appeared before the Tribunal, I sought to establish whether or not the first applicant would speak on behalf of both applicants or whether they each wished to address the Court. The second applicant indicated that both applicants wished to speak to the Court, following which they interchangeably did so during the hearing, and similarly the Court addressed them both in relation to all matters.
When identifying the documents that were before me, the first respondent’s solicitor tendered the Court Book which was received and marked exhibit “1R”. In the course of the Court Book being tendered, when asked whether or not the applicants had an objection to the Court receiving it, the first applicant said that they had received the Court Book that he understood it was a document from 2018, that the documents in it pertained to their case, and that while the documents in it were in English there was no objection to the Court Book being received. This will be relevant to matters that I will address shortly.
Each of the three grounds of review contained in the application to show cause are expressed in a narrative form and none of them specifically makes an allegation of jurisdictional error on the part of the Tribunal. All three of the grounds of review urge upon the Court the truth of the applicants’ claims and the danger that they say they will face in Malaysia. To this extent, and as I explained to the applicants several times during the course of the hearing, this Court is not in a position to decide for itself the truth of their claims, or whether the applicants should be granted a visa or otherwise entitled to stay in Australia. Despite this, most of the submissions made to me today by the applicants pertained to their desire to stay in Australia in order that they could educate and raise their daughter here.
Grounds 1 and 3 make clear that the applicants are not happy with, and do not agree with, the decision of the Tribunal. While it is understandable that the applicants are not pleased with the Tribunal’s factual and credibility findings, this is not by itself a jurisdictional error. What is required by the Tribunal for procedural fairness is a fair hearing and not a fair outcome: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25].
At the hearing today, I took the applicants through all three of the grounds and observed that the entirety of grounds 2 and 3 sought to urge upon the Court the merits of their protection claims. Similarly, most of ground 1 does the same. I indicated to the applicants that, in respect of ground 1, only the first and last sentences seemed to give rise to something that might be considered as going towards an error. I told the applicants that I would like to hear them in respect of each of those allegations and I had the first sentence of ground 1 interpreted to the applicants.
When asked in relation to the first sentence of ground 1 what aspects of the Tribunal’s decision had not been made in a fair manner, the first applicant responded, “I did not say that.” What then ensued was a somewhat confusing exchange with the applicants regarding the preparation of their application to this Court which, it now seems, they did not prepare themselves. It also transpired that, notwithstanding the fact that the first applicant had confirmed to me that the applicants had the Court Book and did not object to it being received into evidence, it may be the case that the first time the applicants ever received the Court Book was yesterday when it was re-sent to them by email (out of an abundance of caution) by the solicitors.
A review of the Court’s file indicates that the applicants filed a Notice of Address for Service on 21 February 2018 which had the effect of changing their address. It seems from a letter from the first respondent’s solicitors dated 7 March 2018 (which was received and marked exhibit “2R”) that the Court Book was served on the applicants at the address for service in the originating application and not to their new notice of address for service.
I gave the applicants an opportunity to tell me whether or not they were able to proceed given that they seemed only to have received the electronic copy of the Court Book yesterday and they indicated that they were content for the hearing to proceed. In this regard all of the documents in the Court Book are documents that the applicants have either previously had access to, created and/or submitted themselves. There is no suggestion that the applicants’ failure to file any amended application in this proceeding, in the almost five years in which it has been on foot, is somehow linked to them not having had earlier access to the Court Book.
The applicants were given an opportunity today to say whatever they wished in relation to why it is that the Tribunal’s decision is affected by some sort of legal error. When given that opportunity on various occasions each of the second, and later the first applicant, said something similar. Namely, they asked the Court to give them a chance to stay in Australia, and to allow them to give their child a good education. They said that they “like it here” in Australia and they would like to stay.
Again, these are not matters which go toward grounding any error upon which the matter would be remitted to the Tribunal. Having not themselves otherwise raised any matters in relation to which a jurisdictional error could be found, the Minister has made submissions based on the grounds which are included in the application. As observed earlier, there are only two aspects of the grounds which might be capable of grounding an allegation of jurisdictional error, being the two statements arising from ground 1 to which I referred earlier.
The first of those which was the statement that the decision had not been made in a fair manner. Beneficially construed, I will assume to be an allegation that the applicants were denied procedural fairness. The first respondent says that the Tribunal complied with its obligations which are provided in Part 7, Division 4 of the Act.
In this regard, the applicants were invited to attend a hearing before the Tribunal on 10 May 2017 in accordance with ss 425 and 425A of the Act. An invitation was sent to the applicants at the email address provided by them in connection with the review. The first applicant availed himself of the opportunity to attend that hearing and was assisted at it by an interpreter in the Malay language in order that he could give evidence and present arguments.
There is nothing arising from the hearing as described in the Tribunal’s decision record that would lead the Court to conclude that the hearing opportunity was anything other than meaningful. The first respondent also submits that the Tribunal properly complied with ss 424A and 424B of the Act by putting to the applicants for comment certain information. By its letter of 18 May 2017 the Tribunal gave the applicants clear particulars of information which it said may be the reason or part of the reason for affirming the decision under the review.
The Tribunal’s letter explained the relevance of the information to the review and that if the Tribunal were to find the applicant was not credible on the basis of the information, it may form part of the reason for affirming the decision. The Tribunal’s letter included a sentence in the middle of the letter, emphasised by bold type, to the effect that the Tribunal had not made up its mind in respect of the information.
The first respondent says that the Tribunal’s correspondence complied with ss 424A and 424B of the Act and that, accordingly, the Tribunal discharged its procedural fairness obligations in that regard. The Tribunal records at [38] that it put the information to the applicant at the hearing, and makes reference to the applicant’s response at the hearing. However, as I noted a moment ago, the Tribunal also then put the information to the applicants in writing after the hearing and invited them to comment pursuant to s 424A.
The material in the Court Book indicates that the applicants responded to the s 424A invitation, initially by a brief handwritten letter received by the Tribunal on 26 May 2017. A typed version of that response in relevantly identical terms was also sent by email to the Tribunal on 30 May 2017. However, no reference to either response is included in the Tribunal’s reasons for decision.
So while it might be accurate to say that the letter complied with s 424B, I asked the first respondent’s solicitor at hearing whether anything arose from the fact that the Tribunal had not made reference to the response in the reasons for decision. The solicitor for the first respondent acknowledged that while [38] of the Tribunal’s decision did not specifically refer to the written response, a summary of the evidence that appears at [38] of the Tribunal’s reasons for decision is largely consistent with the content of the written response.
The first respondent says that even if the Tribunal erred (which is not conceded) then any such error would also not be material. That is because the first respondent said that ultimately the Tribunal rejected all of the applicant’s claims, found those claims to not be credible and rejected all the factual integers of those claims as being untrue.
It is the case that the Tribunal is not required to refer to every piece of evidence: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46].
Having myself reviewed the applicant’s response to the s 424A letter, I am prepared to infer that the reason the Tribunal did not refer to it was because, with all due respect to the applicants, it was not particularly comprehensible in the context either of the information upon which the applicants were being asked to comment nor the findings which the information might lead the Tribunal to make.
While it would have been preferable that the Tribunal made some mention of the response, in the present case I am satisfied that the lack of reference to the response in the reasons for decision does not mean that the response was not considered at all. Rather, the Tribunal’s failure to mention it in the course of the findings and reasons more likely denotes that the Tribunal did not find it relevant.
Even if I were wrong in that regard, and the Tribunal did err by failing to consider the applicant’s response, that error would not be material because applying the relevant counter-factual analysis had the response been considered, there is no realistic possibility that it could have resulted in a different decision.
The second statement arising from ground 1 which may be seen to allege error is the last sentence thereof which, beneficially construed, may be taken to be an allegation of bias. The expression that the decision “is totally based on a false perception” seems to be an allegation that the decision is effected by actual bias. Such an assertion is a high bar to meet. Aside from the bare statement, the complaint is not even fully alleged, let alone supported by any evidence. When asked to speak to this allegation, the first applicant again made submissions relating to the applicants’ desire to stay in Australia and educate their daughter here.
To make out an allegation of actual bias the applicants would need to demonstrate that the Tribunal had closed its mind such that it was not open to persuasion, or that it was unwilling to evaluate all the material fairly. To the extent that the allegation of actual bias needs to be distinctly made and clearly proved the applicants have done neither.
There is nothing arising from the material before me to suggest that a fair-minded lay observer, properly informed as to the nature of the proceedings and the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal had not brought an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425.
Accordingly, I am satisfied that there is no error arising from the Tribunal’s decision, let alone a jurisdictional error as alleged, or at all. For the foregoing reasons, absent jurisdictional error, the decision is a privative clause decision and should be dismissed. I so order.
Consequent upon the dismissal of the application, the Minister seeks an order that the applicants pay the Minister’s costs fixed in the amount of $5,000. When asked in relation to whether or not costs should follow the event, and whether or not the amount was appropriate, the first applicant responded on behalf of both applicants to ask if it was possible to pay in instalments of $300 a month.
The first applicant said he is the only person in the family who is working. As I explained to the applicants, the Minister’s solicitors will in due course correspond with them and provide details as to whom at the first respondent’s Department the applicants can speak in order to discuss some sort of payment arrangement but that is not something that would impact the order that the Court would make today. I am satisfied that costs should follow the event and that the amount sought is reasonable.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 29 March 2022
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