CZW18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 130
•20 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CZW18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 130
File number: MLG 1620 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 20 February 2024 Catchwords: MIGRATION LAW – Protection (Subclass 886) Visa – Whether there was error because of a failure to provide an interpreter – Whether the Tribunal’s adverse credibility findings were made without a logical and probative basis – Whether the Tribunal misapplied the law – No error found – Application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s. 43C, 44
Migration Act 1958 (Cth) ss. 31, 35A, 36, 425, 427, 476
Migration Regulations 1994 (Cth) reg. 2.01
Cases cited: ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426
AVQ15 vMinister for Immigration and Border Protection (2018) 361 ALR 227; [2018] FCAFC 133
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submissions: 6 February 2024 Date of hearing: 6 February 2024 Place: Melbourne Applicants: In person Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 1620 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
CZW18
First Applicant
CZX18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
20 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application filed 8 June 2018 is dismissed.
2.The Applicants 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 CHAMPION:
INTRODUCTION AND SUMMARY
The Applicants are citizens of Malaysia (CB193, [11]). At the date of the Tribunal decision, they were engaged to be married. The Second Applicant (the wife) is now married to the First Applicant (the husband). On 30 November 2015 the Applicants arrived in Australia together (CB, [42]). The Applicants applied for the protection visas on 17 August 2016, in two separate applications.
Grounds 1 – 4 of the application for judicial review are set out fully below. In my view, none of the grounds has been made out and I will dismiss the applications. My reasons follow.
Procedural matters
Even though the Court made orders that they do so, the Applicants did not file and serve any amended application with proper particulars or written submissions in support of their grounds. As a result, I have proceeded on the basis of their application filed on 8 June 2018.
I admitted the Court Book into evidence (CB1–203): Ex. CE-1.
TRIBUNAL DECISION
The Applicants claimed to fear harm from the Ah Long, moneylenders in Malaysia. In 2009, when the Second Applicant was just 18 years old, her then boyfriend incurred a debt of RM60,000 to the Ah Long. In 2010, the Applicants had met each other at hairdressing school (CB198, [49]). In April 2015, the Applicants claimed unknown men assaulted the Second Applicant and tried to drag her into a van because her ex-boyfriend had used her as a guarantor for the RM60,000 debt he incurred in 2009. The First Applicant intervened to save the Second Applicant from being dragged into the van and they began dating soon after (CB 195, [25]). The First Applicant agreed to pay the debt that the Second Applicant owed, but the Ah Long demanded that he pay a larger amount of RM150,000. Members of the Ah Long beat the First Applicant and threatened him with death if he failed to repay the debt the Second Applicant owed. As he could not repay a debt in that amount, he and the Second Applicant fled to Australia.
The First Applicant
The Tribunal had a “number of concerns with the [First] Applicant’s credibility” (CB195–196, [31]–[35]).
It enumerated 5 concerns as to the credibility of the First Applicant’s account as follows.
First, the Tribunal found it “implausible and far-fetched” that the First Applicant just happened to be at the back of the bakery “where he sees someone he knows being beaten and forced into a van”. Secondly, the Tribunal found it was “implausible” that the abductors would just let the Second Applicant go. Thirdly, the Tribunal found it “unconvincing” that the men who tried to abduct the Second Applicant knew where the First Applicant worked at the bank. Fourthly, the Tribunal found it “highly improbable” that the Ah Long would beat the “First Applicant” and demand payment from the First Applicant “for something someone else did in 2009”, six years previously. Fifthly, there was an inconsistency between the First Applicant’s written claim to the Department that he was paying off almost $50,000 AUD to the Ah Long and his oral evidence to the Tribunal that he was not paying the Ah Long but his fiancée (the Second Applicant) had been paying them RM300 monthly.
The Tribunal concluded as to the First Applicant’s claim (CB196, [37]) that:
… It does not accept that he has been threatened or physically harmed arising out of these claimed debts to the Ah Long because the Tribunal has assessed that the applicant has fabricated these claims solely for migration purposes and not because of a genuine, deep, urgent or actual fear of persecution based on these claims, either at the time of application, during the scheduled hearing, now, or into the foreseeable future.
[Emphasis added]
The Second Applicant
The Tribunal adopted a similar structure in its reasons as to the Second Applicant and, in a similar way and for similar reasons, disbelieved her claims. It “said that it had a number of concerns with the applicant’s credibility and her claims to have guaranteed a loan for a boyfriend in 2009, her claim of attempted abduction, and her claim to fear being sent to a prostitution centre” (CB198, [51]).
The Tribunal enumerated 5 concerns as to the credibility of the Second Applicant’s account as follows.
First, the Tribunal found it to be “implausible” that for over 5 years the Ah Long left her alone and “then suddenly in April 2015 they decided to beat her and attempt to abduct her” (CB198, [52]). Secondly, the Tribunal found that the Second Applicant’s account of a delay of years before the attempted abduction and beatings to be “contrived and far-fetched”. Thirdly, it made “no sense” that the Ah Long would use an unemployed 18 year old woman as guarantor for a loan. The Tribunal found the claim to have been “fabricated”. Fourthly, inconsistent testimony between the First Applicant and the Second Applicant about whether she went to hospital following the alleged abduction “further undermin[ed] her credibility”. Fifthly, there was an inconsistency between the Second Applicant’s written claims (on the one hand) that she tried to get help from her family and her claim before the Tribunal (on the other hand) that she never told her family about the Ah Long or anything related to it.
The Tribunal found that the Second Applicant (CB199, [58]):
[…] has fabricated these claims solely for migration purposes and not because of a genuine, deep, urgent or actual fear of persecution based on these claims, either at the time of application, during the scheduled hearing, now, or into the foreseeable future.
[Emphasis added]
In summary, the Tribunal made strong adverse credibility findings as to the accounts of each of the First Applicant and the Second Applicant. The Tribunal rejected outright the key elements of the Applicants’ account of events in Malaysia.
As a result, the Tribunal affirmed the decision not to grant the Applicants protection visas.
JUDICIAL REVIEW APPLICATION
The Applicants pressed the 4 grounds of judicial review in their original application to the Court made on 8 June 2018 (CB4).
Ground 1: Was there jurisdictional error because of inadequate interpreting at the Tribunal?
Ground 1 (as written) is as follows:
1.DURING MY HEARING SESSION I WAS DISSATISFIED WITH THE INTERPRETER BECOUSE HE DID NOT SPEAK WELL WITH WHAT I SAID.
It is difficult to make sense of this ground because there was no interpreter at the Applicants’ Tribunal hearing. No interpreter is listed as present in the hearing record (CB182). The Tribunal decision expressly notes the “hearing was conducted without the assistance of an interpreter” (CB192, [3]; emphasis in the original).
In response to a question from me as to how the Applicants could submit that they were dissatisfied with an interpreter who “did not speak well” when in fact there was no interpreter who assisted at the Tribunal hearing, the Applicants’ explanation was that a friend had assisted them to draft their application to the Court. I have treated this ground as an allegation that there was a jurisdictional error because the Tribunal did not provide an interpreter and was required to do so.
If Ground 1 is to be understood in that way, the difficulty with it is that the Applicants (or one or other of them) had on 4 occasions prior to the Tribunal hearing indicated that they did not require an interpreter. First, in their written applications for a protection visa when the matter was before the Department each of the Applicants ticked “No” to the question “if you are called for an interview, will you need an interpreter?” (CB25, Q30; CB50, Q30). Secondly, in the application for review to the Tribunal the First Applicant had answered that he did not need an interpreter when communicating with the Tribunal (CB142, Q2). Thirdly, the Applicants had indicated that no interpreter was required in the written response to the Tribunal’s hearing invitation (CB156). Fourthly, the Tribunal’s “Case Notes” record a conversation between a Tribunal staff member on 6 October 2017 (the hearing occurred on 10 October 2017) and the First Applicant: “the applicant stated that both he and [t]he secondary applicant do not require an interpreter for their hearing” (CB187). The Applicants did not submit, or provide any evidence, that they had requested, but been denied, an interpreter.
A failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground for review under s. 476 of the Migration Act 1958 (Cth). The failure to provide an interpreter may mean that that the Tribunal has not given an applicant a meaningful invitation to appear in accordance with s. 425(1) of the Act. Conceptually there may be a miscarriage of a discretion because s. 427(7) affords the Tribunal a discretion as follows:
If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.
In this case, the Applicants (or one or other of them) said 4 times before the Tribunal hearing that they did not require an interpreter. I have no evidence by way of a Transcript of the Tribunal hearing (or otherwise) which proves that there was any material miscommunication because of English language proficiency issues between the Applicants and the Tribunal as to a matter of significance which might have affected the Tribunal’s decision as to their visa applications. The Applicants did not identify any material miscommunication. As a result, the Applicants have not proved that any interpretation issue “related to a matter of significance for the applicant’s claim or the tribunal’s decision” so as to constitute a vitiating error: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507, [45].
For completeness, I note, although more than 5 years elapsed between the Tribunal hearing and the hearing before me, a Malay interpreter was available by telephone to assist in the hearing before me. Both applicants indicated that the interpreter was not required and they put their submissions to me in English.
Ground 1 has not been made out.
Ground 2: Did the Tribunal make an illogical statement in paragraph [54] that constituted jurisdictional error or make a decision “through emotion”?
Ground 2 (as written) is as follows:
IN PARAGRAPH 54, MEMBER HAVE MENTIONED ILLOGICAL OF HER STATEMENT. WHILE IN ORAL STATEMENT I HAVE NOTICED AH LONG IS UNREGISTERED BODY. BECOUSE OF THAT THEY ONLY NEED THE GUARANTOR INFORMATION. THE MEMBER ALSO EXPRESSED VERBALLY DURING THE HEARING SESSION WHICH SHE WAS NOT SURE OF MY STATEMENT. I FEEL THAT THE MEMBER MADE A DECISION THROUGH EMOTION AND I LOOK LIKE JURISDICTION ERROR BY THE TRIBUNAL OVER THAT STATEMENT.
The Tribunal’s decision at paragraph [54] (CB198) is as follows:
Third, it is illogical that the Ah Long would use an unemployed 18 year old female as a guarantor for a loan for her boyfriend Brian. It makes absolutely no sense why the Ah Long would use an 18 year old who is unemployed to guarantee a loan. The Tribunal finds this claim to have been fabricated.
I struggled to attribute any meaning to the Applicants’ statement that the “Ah Long is unregistered body” in the first sentence of Ground 2. The Applicants explained the submission before me that the Ah Long are unregistered and illegal moneylenders, in contrast to those who operate in the regulated banking sector. It may be readily accepted that the Ah Long do not operate in accordance with formal legal processes or requirements.
As to the Applicants’ reference to the decision being “illogical” or made “through emotion”, it may be possible to understand Ground 2 as a challenge to the Tribunal’s adverse credibility findings. I note that the Tribunal’s adverse findings of credibility may be amenable to judicial review on jurisdictional error grounds: see i.e., CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146, [38]–[39]; AVQ15 vMinister for Immigration and Border Protection (2018) 361 ALR 227; [2018] FCAFC 133; [41(a)- (f)] In CGQ15. the Court held that an adverse credibility finding may be challenged on recognised grounds including a failure to afford procedural fairness, reaching a finding without any logical or probative basis or unreasonableness: CGQ15, [38].
Further, in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, Crennan and Bell JJ held at [130] that: “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean “the decision to which the Tribunal came … is one at which no rational or logical decision-maker could arrive on the same evidence.” The statute imports a requirement that a decision not be “clearly unjust” or “arbitrary” or “capricious” or “unreasonable”. On the other hand, if someone else’s process of reasoning is described as “illogical” or “unreasonable”, or even “so unreasonable that no reasonable person could adopt it” these may be “merely emphatic ways of saying that the reasoning is wrong” and “then they may have no particular legal consequence”: Minister for immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, [40].
It may be that the Applicants’ submission that the Tribunal made a decision that was “illogical” or made “through emotion” is to be understood as a submission that the Tribunal made a decision without any logical or probative basis or that the reasoning was unreasonable in the sense discussed in CGQ15.
In their submissions before me, the Applicants expressed their emphatic disagreement with the adverse credit findings against them. They steadfastly denied that they had made things up and said that these events really happened to them.
Nonetheless, I have not been persuaded that the Tribunal’s reasoning at [54] was illogical or irrational and the requisite sense.
Assessed in light of the authorities referred to above, the Tribunal’s conclusion at [54] was not without a logical and probative basis. It was open to the Tribunal to reason that the Ah Long (even if they were unregistered moneylenders operating outside the legal system and prepared to adopt violent means to recover debts) were still in the business of recovering capital they had advanced and interest (including at usurious rates) on that capital. The Tribunal’s process of reasoning at [54] that it did not appear to make business sense for the Ah Long to rely on an impecunious guarantor as security for a debt was open to it. The Tribunal reasoned that it was inherently commercially unlikely for the Ah Long to take a decision that they would rely upon an 18-year-old unemployed woman to be the guarantor of her boyfriend’s debts as a realistic security for the recovery of the debt. The Tribunal’s rejection of this aspect of the Second Applicant’s narrative by reference to her age and life circumstances was not illogical or irrational. The Tribunal did not have to uncritically accept the Applicants’ account. It does not establish error to say that a differently constituted Tribunal might have taken a different approach in its assessment of the Second Applicant’s life circumstances. The Tribunal’s reasoning process and conclusion at [54] was not illogical or irrational in the requisite sense.
Ground 2 has not been made out.
Ground 3: Did the Tribunal make a jurisdictional error as to the Applicants’ eligibility for protection visas?
Ground 3 (as written) was as follows:
HOWEVER WE ARE ELIGIBLE IN SECTION 31(1) OF THE ACT PROVIDES THAT THERE ARE TO BE PRESCRIBED CLASSES OF VISAS. THESE ARE SET OUT IN SCHEDULE 1 TO THE REGULATIONS 5. IN ADDITION, THERE ARE VISA CLASSES PROVIDED FOR IN THE ACT, INCLUDING PROTECTION VISAS 6.
On a literal reading, Ground 3 does no more than encapsulate the structure of the Act and the Migration Regulations 1994 (Cth) made under that Act. Section 31(1) of the Act provides (as the Applicants identify) that “there are to be prescribed classes of visas”. Specified classes of visas are set out in Schedule 1 to Regulations: see Sch 1, reg. 2.01. Section 31(2) of the Act sets out that “as well as the prescribed classes” there are classes provided for by other provisions of the Act. The other identified provisions of the Act relevantly include s. 35A as to protection visas: see ss. 31(2)(e), (f) and (fa).
Section 35A(6) provides that the criteria for a class of protection visas are set out in s. 36 of the Act. Section 36 provides that a non-citizen in Australia will be eligible for a protection visa if the Minister is satisfied that Australia has protection obligations to that person because the person meets the refugee criterion or the complementary protection criterion, or is a member of the same family unit as a non-citizen who meets one or other of those criteria: see i.e., ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426, [5]–[8].
I accept the First Respondent’s submission that the Tribunal correctly identified that the issue was whether the Applicants met one of the criteria under s. 36(2)(a), (aa), (b) or (c) of the Act. It asked itself the correct legal questions. I detect no error in the Tribunal’s approach. In summary, the Tribunal was not satisfied that the Applicants had a well-founded fear of persecution and were persons to whom Australia owed protection obligations because it disbelieved the key elements of their accounts of events in Malaysia and found that their narrative had been fabricated for migration purposes. The Tribunal’s findings as to what had happened in the past was a sensible guide to the risk of persecution in the future. The Applicants were not granted visas because of the Tribunal’s key factual findings and no substantive issue of statutory interpretation as to the criteria for the grant of a protection visa arises on the material. Expressed slightly differently, the Applicants have not established that the Tribunal misapplied the law.
Ground 3 has not been made out.
Ground 4: Is there any jurisdictional error in connection with the Administrative Appeals Tribunal Act 1975 (Cth)?
Ground 4 (as written) is as follows:
2.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 FOR APPEALS TO FEDERAL COURT OF AUSTRALIA FROM DECISIONS OF THE TRIBUNAL
[As written]
In part, Ground 4 is a narrative description of the fact (not disputed) that a decision of the Tribunal is amenable to review in the courts.
This Court has jurisdiction to hear an application for judicial review of the kind the Applicants have brought under s. 476 of the Act, not under s. 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). At a technical level, as the First Respondent pointed out, s. 43C of the AAT Act provides that Part IVA of the AAT Act (Appeals and references of questions of law to the Federal Court of Australia) does not apply to a proceeding for the review of certain decisions under the Migration Act. In that sense, the Applicants’ reference to the AAT Act is misplaced.
This is a technical issue because there is no contest that the Applicants have correctly invoked the jurisdiction of the Court as to their judicial review application.
The important issue is that Ground 4 does not advance their application because it does not identify any substantive or underlying jurisdictional error which would support the Applicants’ claim for relief.
Ground 4 has not been made out.
DISPOSITION
I will dismiss the application. I will order that the Applicants pay the First Respondent’s costs fixed in the sum sought of $6,000.00, that amount sought being less than the relevant scale costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 20 February 2024
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