CYI18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 833
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYI18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 833
File number: MLG 1596 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 6 September 2024 Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – where the Tribunal invited the applicant to comment pursuant to s 424A of the Migration Act 1958 (Cth) on potentially dispositive information – where the applicant alleges that the standard of interpretation at the Tribunal hearing was inadequate – where the applicant alleges bias on the part of the Tribunal – where instead the Tribunal was complying with its obligations to afford the applicant procedural fairness – where in the absence of particularisation and a transcript the allegation of sub-standard interpretation cannot succeed – application dismissed with costs Legislation: Migration Act 1985 (Cth), ss 36, 424A
Administrative Appeals Tribunal Act 1975 (Cth), s 44
Cases cited: Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102; [2003] FCA 872
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submissions: 3 September 2024 Date of hearing: 3 September 2024 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Ms K Petrovski, Sparke Helmore ORDERS
MLG 1596 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYI18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application for judicial review filed 7 June 2018 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $5,000.
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 SYMONS:
In this matter the applicant seeks judicial review of a decision made by the second respondent (Tribunal) dated 18 May 2018 to affirm a decision of a delegate of the second respondent (Minister) to refuse the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
The Minister opposes the application and submits that the decision of the Tribunal is not affected by jurisdictional error. As these reasons explain, I agree with this assessment.
BACKGROUND
The applicant is a citizen of Malaysia. She applied for the protection visa on 11 June 2016 (Court Book (CB) 1-42) after having first arrived in Australia on a tourist visa on 21 March 2016. The applicant explained that she had left Malaysia because she had been in a de facto relationship with a younger man for three years, and due to their religious beliefs as Muslims, she feared that the respective families of the couple would force them both to marry a suitor of their (the families’) choosing. The applicant acknowledged that she had not been harmed during the time of the parties’ relationship and that she and her partner had no plans for marriage due to their 14-year age gap.
On 14 October 2016, a delegate of the Minister made a decision to refuse the applicant the protection visa (CB 43-55). The delegate found, based on the applicant’s statements contained in her protection visa application and country information identified in the decision record, that the applicant would be able to return to Malaysia and live in a location removed from her family, if she chooses and that the applicant did not have a well-founded fear of being persecuted in Malaysia for any reason. The same reasoning led the delegate to conclude that the applicant was unable to satisfy the criterion for the grant of the protection visa on complementary protection grounds.
On 26 October 2016 the applicant applied to the Tribunal for review of the delegate’s decision (CB 56-62). The applicant identified her Malaysian de facto partner as a secondary review applicant (CB 57). The applicant’s partner had applied separately for a protection visa and his protection visa had also been refused by a delegate.
On 15 August 2017 the Tribunal sent an invitation to the applicant to attend a hearing on 27 September 2017 (CB 67-68).
On 27 September 2017 the applicant attended a hearing at the Tribunal and was assisted by an interpreter in the Malay and English languages (CB 73-74).
On 2 May 2018 the Tribunal sent the applicant an invitation to comment on or respond to information (CB 77-80). The particulars of the information were described as follows:
·At [the applicant’s] hearing, she said that her partner, Mr #, had lodged a police report shortly before travelling to Australia. When asked if she had that report she initially said they did not have a copy. She then said that Mr # had a copy but had not brought it to Australia. It was noted that this appeared relevant evidence so it was not clear why she had not provided it already. It was noted to her that this might cause the Tribunal to doubt there was a report, or that there had been threats from her brother.
·At Mr #’s hearing, he said that he had made a report to the police, but had lost the report. He said he was looking for it but had lost it before coming to Australia. It was noted to him that he had not said anything about a police report, or that he had received death threats from [the applicant’s] brother in his written statement to the Department. He said he had not written it down because the report was lost and he had lost his phone and he did not have the evidence. He said he would ask his family to look for it. The Tribunal explained to Mr # that it may come to the view that he had not received death threats from [the applicant’s] brother and did not make a police report given the lateness of this claim, that it was not included in his written statement.
·After the hearing on 30 October Mr # provided a Malaysian police report dated 14 March 2016, in which Mr # received an SMS on 14 March 2016 from [the applicant’s] brother, “D”, in which “D” said ‘I will kill you if you refuse to marry my younger sister’. And claimed that before this he had received a message from “D” that “D” would beat up Mr # if he refused to marry [the applicant]. The report explains that [the applicant] does not wish to marry him as she is older, and that Mr # is making the report as he is afraid he will be harmed.
The Tribunal explained that this information was relevant to the review because the Tribunal had some significant doubts that the police report was genuine and that the events which it described had occurred. This was because neither the applicant nor her partner had referred in their written statements to the applicant’s brother having made death threats to them or that they had gone to the police and made a report and because the police report was produced “late in the process”. The Tribunal explained that these concerns might lead it to reject the claims that the applicant’s brother had made threats against either the applicant or her partner and might further lead the Tribunal to find that the applicant was not credible or a witness of truth.
The applicant was invited to provide her comment or response to this information by 16 May 2018.
The applicant provided a response to the Tribunal on 15 May 2018 in which she disclaimed knowledge of the contents of the police report and explained that it was only after the hearing on 27 September 2017 that her partner had mentioned to her that the applicant’s brother had made death threats against the partner if he did not marry the applicant (CB 81-82).
THE DECISION OF THE TRIBUNAL
On 18 May 2018 the Tribunal made a decision to affirm the decision under review and published a statement of decision and reasons (Reasons) which it sent to the applicant on 21 May 2018 (CB 84-96).
After identifying the relevant law and the background to the applicant’s review application, the Tribunal recited the applicant’s claims as they had been recorded in her application for the protection visa (Reasons, [11]).
The Tribunal referred to its exchange with the applicant concerning her claims that her brother had threatened over the years to beat up her partner. The Tribunal noted that later in the hearing, the applicant had conceded that she had not been harmed by her family during the three years she had lived with her partner (Reasons, [19]-[20]).
The Tribunal referred to the applicant’s evidence at hearing which was to the effect that she and her partner had filed a police report about the threats from her brother a month before they came to Australia. The Tribunal noted its concern that the failure of the applicant to produce this report (she said she had left it at their house in Malaysia) might lead it to doubt that a report was made and doubt that the brother had made threats (Reasons, [21]).
The Tribunal referred in detail to the invitation to comment sent under s 424A of the Migration Act 1985 (Cth) (Act) (refer [8]-[10] above) and set out the applicant’s response (Reasons, [23]-[29]).
The Tribunal found that the applicant’s response did not address the concerns it had with the applicant’s claims. The Tribunal was particularly concerned that although having been aware that her brother had threatened her partner several times, she did not disclose this relevant information in her written claims to the Department and did not offer an explanation as to why this was the case. The Tribunal’s concerns were heightened by the appearance of the report so late in the process (Reasons, [30]-[31]).
The Tribunal found that the police report was not genuine and placed no weight on the document as supportive of the applicant’s claims (Reasons, [32]). While the Tribunal accepted that the applicant and her partner lived together in Kuala Lumpur for three years without being married and their families may have been unhappy about this, it did not accept that the applicant’s brother had threatened to kill or harm her or her partner at any time. The Tribunal did not accept that the applicant or her partner had made a complaint to the police about the applicant’s brother or anyone else and did not accept that the applicant or her partner had been threatened by anyone else in their families, or more generally, for living together without being married. The Tribunal found that the applicant had not suffered any harm in the past for reasons of her living with her partner in a de facto unmarried relationship in Malaysia and neither had her partner been harmed or threatened by the applicant’s brother or anyone else for this or any other reason (Reasons, [33]-[35]).
The Tribunal noted that at hearing the applicant had not pressed her claim to be at risk of forced marriage and that to the extent she was questioned about the claim, the Tribunal found her evidence to be undetailed and implausible. The Tribunal did not accept that the applicant had suffered harm of any kind for reasons of her family forcing or attempting to force her to be married to someone of their own choice (Reasons, [36]-[37]).
The Tribunal addressed the applicant’s claim that she had debts because her economic situation in Malysia had not been stable. The Tribunal accepted that the applicant may have been working as a sub-contractor in Malaysia and that she may have gone into arrears with her rent, car loan and personal loan but found that the applicant’s prospects of employment on return were good. This finding was informed by country information and the applicant’s evidence that she had worked in Malaysia in the past and broadened her work experience in Australia. The Tribunal did not accept that the applicant suffered financial hardship to the level of serious or significant harm in the past in Malaysia (Reasons, [38]-[41]).
The Tribunal did not accept, based on its findings, that there was more than a far-fetched and remote chance that the applicant’s brother or anyone else in her family would harm her for not marrying someone of their choosing nor for living with her partner without being married. The Tribunal found instead that the applicant could return to Malaysia and resume living with her partner without any chance of being harmed by her family or anyone else for reasons connected with her choice of partner. The Tribunal found that there was no real chance that the applicant would be harmed by her brother, family or anyone else for any reasons connected to her living with her partner in an unmarried relationship, her refusal to be married to someone of her family’s choosing or for any other related reason on return to Malaysia now or in the reasonably foreseeable future (Reasons, [43]).
As far as the applicant’s claims of economic hardship were concerned, the Tribunal found, based on its earlier findings, that there was no real chance that the applicant would be harmed for any reason connected to her financial situation or ability to repay her loans or for any other related reason on return to Malaysia now or in the reasonably foreseeable future (Reasons, [44]).
The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) (Reasons, [45]).
The Tribunal separately considered whether the applicant would meet the alternative criterion for the grant of the protection visa in s 36(2)(aa).
The Tribunal repeated its earlier findings made in respect of s 36(2)(a) and noted that the applicant did not claim to fear harm on return to Malaysia for any reason other than those already considered. The Tribunal found that it followed that it did not accept that there was a real risk the applicant would suffer significant harm from any person or for any of the reasons previously identified as a necessary and foreseeable consequence of being removed from Australia to Malaysia (Reasons, [48]).
The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa).
JUDICIAL REVIEW APPLICATION
On 7 June 2018 the applicant filed her application seeking judicial review. In this application she identified the following grounds of application, reproduced without alteration:
1. During my hearing session, I was dissatisfied with the interpreter because he did not speak well with what I said.
2. The member also expreddes verbally during the hearing session which he was not sure of my statement. I feel that member made a decision through emotion over that statement. However, I am eligible in section 31(1) of the Act provides that there are to be prescribed classes of visas. The are set out in Schedule 1 to the regulation 5 in addition, there are classes provided for in the Act, including protection visas 6.
3. I feel there is jurisdiction error by Tribunal because over that statement with the emotion and the Tribunal state one of the reason they do not grant the protection visa.
4. According in – of the 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT ACT) there is description and authorizing me to make such action and appeals to Federal Court of Australia from decision of the Tribunal.
On 4 September 2019, the first set of procedural orders were made which identified the timetable (by reference to a not yet fixed hearing date) for the filing of a court book, an amended application, and written submissions. Paragraph 5 of the orders provided that evidence of the contents of any sound recording be presented as a transcript verified by affidavit.
On 16 November 2019 the Minister’s lawyers filed a court book.
On 28 September 2023 the applicant and a lawyer representing the Minister participated in a telephone callover before a Registrar at which time it was noted that the applicant provided confirmation that she had received the court book.
On 20 August 2024 the Minister filed written submissions.
Hearing on 3 September 2024
The final hearing of the applicant’s application was listed before me on 3 September 2024. On this date the applicant appeared in person but without representation. She obtained assistance from an interpreter in the English and Malay languages. The Minister was represented by solicitor advocate Ms Petrovski.
The applicant confirmed that she had with her copies of the court book, her application for judicial review and the Minister’s written submissions.
The applicant was invited to explain to the Court how it was that the Tribunal made a legal error in her case including by reference to the matters that she had raised in her application.
GROUNDS OF APPLICATION
Inadequacy of interpretation
The applicant explained in relation to ground one (standard of interpretation) that when the interpreter spoke, she used “impolite words” and she did not “speak clearly”. When asked how this affected the evidence and/or information that she gave to the Tribunal, the applicant told the Court that the interpreter had ignored what she had said. However, the applicant was not able to identify any example of evidence that had been ignored and acknowledged that she had not raised any concern about the standard of interpretation during the Tribunal hearing.
The Minister submitted, by way of response, that there was no evidence before the Court to infer that the applicant did not understand what the interpreter was saying, nor was there any suggestion made to the Tribunal that this was the case. Instead, the best evidence of what had occurred during the Tribunal hearing was the Tribunal’s decision record.
In this regard, the Minister submitted that the decision record outlined in detail the discussion between the Tribunal and the applicant, from which it was clear that the applicant was able to provide the Tribunal with a personal background and further evidence. Furthermore, the decision record did not indicate that there were any interpretation issues or concerns raised by the applicant and the applicant had not provided a transcript of the Tribunal hearing or any particulars of what, if any, errors the interpreter had made. Relatedly, the applicant had failed to explain how any errors made by the interpreter had impacted on her ability to give evidence, or how they were material to the dispositive findings made by the Tribunal.
I accept the submissions of the Minister in relation to ground one. To the extent that the decision record is taken to faithfully record the applicant’s evidence it reads cohesively and in a manner that is generally consistent with the articulation of the applicant’s claims throughout the visa application and review process. In the absence of a transcript and in circumstances where the applicant has made only general assertions of error and impact, the ground of review cannot succeed.
Allegation of bias
The applicant was invited to tell the Court what she meant by the reference in both paragraphs two and three of her grounds of application, that the Tribunal member had expressed during the hearing that he was not sure of her statement and that he had made a decision through emotion. The applicant was not able to elaborate on this ground of review.
The Minister understood the applicant’s second and third ground to involve an allegation of bias, notwithstanding the applicant had not used this terminology. The Minister submitted that an allegation of bias is a serious allegation and must be firmly and distinctly made and clearly proven (referring to Minister for Immigration and Multicultural Affairs v Jia Legeng(2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J).
The Minister submitted that the applicant had made no attempt to properly particularise this allegation or to provide any evidence that the Tribunal had a pre-existing state of mind which disabled it from undertaking or rendered it unwilling to undertake a proper evaluation of the matter (Jia Legeng at [69]). Nor was there anything from the material available to indicate that a fair minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on the decision (referring to Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 at [27]). No inference of bias or prejudgement could be drawn from the mere fact that the Tribunal made findings adverse to the applicant (referring to VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]).
In the absence of a transcript, the best record of what occurred during the hearing is the Reasons produced by the Tribunal. Amongst other things, the Reasons record that the Tribunal took considerable care to question the applicant about her relationship with her partner and the interactions that she and her partner had with family members in the three years that they lived together in Malaysia. While the applicant might understandably have taken from this exchange that the Tribunal had some concerns about her account, such an approach, without more, does not suggest a mind predisposed to a particular (adverse) outcome. Rather, it is indicative of a Tribunal that is conscious of its obligation to identify for the applicant the issues arising in the review, which issues, not uncommonly, involve concerns about the credibility of a visa applicant’s account of events.
It also appears from the Reasons, that the Tribunal explored with the applicant her claims regarding her economic situation and in this context noted the existence and effect of country information on the topic of the Malaysian economy. Again, this approach is more consistent with a Tribunal that is mindful of its obligation to afford the review applicant procedural fairness rather than a mind that is not open to persuasion.
I am unable to discern error in the approach adopted by the Tribunal to the discharge of its statutory review function.
Other matters
When invited, in open-ended fashion, to tell the Court what the Tribunal had done wrong in considering her case, the applicant explained that she had been in a difficult situation and had told the Tribunal that she wished to stay in Australia because she had a personal loan in Malaysia that she had not paid off; the inference being that the Tribunal had failed to consider this claim.
However, as noted earlier, the Tribunal did consider the applicant’s claim raised for the first time at hearing that she was experiencing financial difficulties, including because she had gone into arrears with a personal loan. The Tribunal gave the applicant the benefit of the doubt that this claim, at a factual level, was true. The Tribunal, however, was not satisfied that the applicant’s financial circumstances, evaluated against country information, gave rise to relevant harm. I can discern no error in the reasoning adopted by the Tribunal.
For the avoidance of doubt, I accept the submission of the Minister that the matters identified in paragraph 4 of the application document, do not identify a viable ground of application given that they refer to a provision of the Administrative Appeals Tribunal Act 1975 (Cth) (s 44) that establishes jurisdiction from decisions of the Tribunal but does not do so in respect of decisions of the kind that are not presently before this Court.
ORDERS
In circumstances where the applicant has not identified jurisdictional error in the decision of the Tribunal dated 18 May 2018, I will order that her application filed on 7 June 2018 be dismissed. I will also order that the applicant pay the first respondent’s costs fixed in the amount of $5,000.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 6 September 2024
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