DDD16 v Minister for Immigration and Border Protection
[2021] FedCFamC2G 366
•17 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DDD16 v Minister for Immigration and Border Protection [2021] FedCFamC2G 366
File number(s): MLG 2294 of 2016 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 17 December 2021 Catchwords: MIGRATION – application for judicial review - protection (class XA) visa – failure by taking into consideration facts not relevant to the matter – failure to take into consideration relevant facts – failure to take into consideration relevant country information – failure of the Tribunal to ask reasonable number of questions to ascertain credibility of applicant – failure to take into consideration Complementary Protection – difficulty of applicant understanding interpreter – failure to establish that there were errors in translations that would constitute jurisdictional error – application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss 476(2), 476(4) Cases cited: WALN vMinister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: 8 September 2021 Date of hearing: 8 September 2021 Solicitor for the Respondent: Ms Elliot Solicitor for the Applicant: The applicant appearing on her own behalf ORDERS
MLG 2294 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DDD16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
17 DECEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $5,000.
3.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 27 September 2016 by which the Tribunal affirmed a decision of a delegate of the first respondent, Minister for Immigration and Border Protection, to refuse to grant the applicant a protection (class XA) visa.
BACKGROUND
The applicant is a Malaysian citizen who travelled to Australia for a short period arriving and departing in June 2014 as the holder of a Subclass 601 Electronic Travel Authority visa (‘ETA visa’). The applicant again came to Australia on an ETA visa on 13 January 2015. On 14 April 2015, the applicant’s ETA visa expired and the applicant remained in Australia unlawfully. On 3 June 2015 the applicant applied for a protection visa and was granted a bridging visa.[1]
[1] Court book pages 15, 16, 27, 30 and 90.
Protection visa application
In her application for a protection visa, the applicant, in response to a question as to why she left Malaysia said ‘in fear of abuse, torture and life insecurity’.[2] The applicant also attached a statement of her claim to her application for a protection visa in which she stated that:
[2] Court book page 17.
·she worked as a nurse initially in Malaysia and then in Singapore;
·whilst in Singapore, she agreed to be a guarantor for a loan taken out by a friend called Ranjit;
·she then lost contact with Ranjit and in December 2013, the loan for which she had provided a guarantee was called in;
·she said that the money lender told her that she in fact owed significantly more than the amount she had initially guaranteed and he demanded payment;
·she said that she did not complain to the police in Singapore as she was scared she might be arrested for having committed an illegal act;
·she then resigned her employment and returned to Malaysia assuming the money lenders would not find her there;
·however, she says that her work colleagues told her that some money lenders had asked about her;
·she went to the police and reported the matter, but was told that she needed to resolve the issue herself; and
·on 28 December 2014, she resigned her employment out of fear for her personal safety and then, after a couple of weeks at her parents’ home, she flew to Australia where she now feels safe.[3]
[3] Court book page 18.
By letter dated 29 June 2015, the Department of Immigration and Border Protection (‘the Department’) acknowledged receipt of the applicant’s protection visa application and advised the applicant of the process for determination of her claim.
On 21 March 2016, the applicant’s representative sent correspondence to the Department seeking information on behalf of the applicant. It appears from this correspondence that the applicant’s visa application was determined without any interview with the applicant and without notice to her.[4]
[4] Court book page 82.
Refusal of protection visa application 21 January 2016
At page 87 of the court book is a copy of correspondence dated 22 January 2016 addressed to the applicant from the Department advising that the applicant’s application for a protection visa had been refused. This letter also advised the applicant of her review rights and how she might lodge a review application. Relevantly, this correspondence advised that any such review application had to be lodged within 28 days of the date on which the applicant was notified of this decision. Attached to this letter at page 90 of the court book and following, is a copy of the delegate’s decision record, setting out the delegate’s reasons for refusing the applicant’s protection visa application. The delegates’ decision was made on 21 January 2016.[5]
[5] Court book page 96.
Review application 8 March 2016
The applicant filed an application for review of the delegate’s decision on 8 March 2016.[6] It is not necessary for the purposes of these reasons to go into the detail as to why, but it is common ground that the Tribunal accepted the applicant’s review application even though it had been lodged more than 28 days from the date of the delegate’s decision. By letter dated 1 July 2016, the applicant was invited to attend a hearing on 15 August 2016.
[6] Court book page 100.
Adjournment request of hearing on 15 August 2016
The applicant sought an adjournment of the 15 August 2016 hearing on the basis that her newly appointed representative was overseas and would not be returning until 20 August 2016. I will address this further below.
The Tribunal did not accede to this request for an adjournment and the hearing record indicates that the applicant attended the hearing with a support person. The applicant was also assisted at the hearing by an interpreter, albeit by telephone. The hearing record also indicates that the applicant was provided until 5 September 2016 to provide any further information in writing.
Tribunal hearing recording
On the 18 August 2016, the applicant was provided with a recording of the Tribunal hearing. I note that the letter forwarding this recording contained the following:
Please note that the attached audio CDs have been tested to ensure that they work and that the content is audible. Should you encounter any problems upon receipt please return the CD to us.
No further submissions were made on behalf of the applicant and on 27 September 2016, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a protection visa.[7]
[7] Court book pages 134 to 140.
TRIBUNAL DECISION
At paragraphs [3] to [7] of its decision record,[8] the Tribunal set out the criteria for a protection visa. The Tribunal noted that:
·the applicant had been advised of the Tribunal hearing on 1 July 2016;
·on 6 July 2016, the applicant’s then representative had advised that they would not be attending the scheduled hearing;
·at the hearing itself the applicant sought an adjournment to allow a new representative to appear;
·although the applicant submitted a new Appointment of Representative form which she had completed, the form had not been signed by the newly appointed representative.
[8] Court book pages 134 to 135.
At [14] the Tribunal noted:
The Tribunal informed the applicant that, as her new representative has not indicated to the Tribunal that he is acting for the applicant or communicated with the Tribunal regarding her case, even though she states that he agreed to represent her four months ago, the Tribunal would not adjourn the hearing. The Tribunal informed the applicant that it would defer its decision until 5 September to enable her to forward a copy of the hearing recording to her representative and to provide written submissions if she wished to. No submissions were received.[9]
[9] Court book page 136.
The Tribunal further recorded that the applicant also requested an interpreter just before the commencement of the hearing and the Tribunal obtained the services of a telephone interpreter in the Tamil language. The Tribunal recorded at [15]:
The applicant told the Tribunal that she had some difficulty understanding some words used by the interpreter (who was from Sri Lanka). The interpreter told the Tribunal that he could understand the applicant.[10]
[10] Court book page 136.
Relevantly at paragraph [16], the Tribunal said:
The applicant’s support person at the hearing is an interpreter in the Tamil language who has assisted the Tribunal in other hearings. The applicant told the Tribunal that she had no difficulty understanding the support person and he told the Tribunal that he could understand both Sri Lankan Tamil and Indian Tamil. The Tribunal noted that the applicant’s support person could inform the Tribunal if he believed the applicant was having difficulties understanding the interpreter. The support person did not raise any concerns during the hearing regarding the applicant’s ability to understand the questions or the interpreter. On the evidence before it, the Tribunal is satisfied that the applicant was able to give her evidence without any impediment. The applicant also demonstrated a reasonable command of English in the hearing.[11]
[11] Court book page 136.
The Tribunal then considered the applicant’s claims for protection at paragraphs [17] to [34]. At paragraph [36] the Tribunal made certain factual findings. Relevantly, the Tribunal did not accept that the applicant had acted as a guarantor as claimed. Nor did the Tribunal accept that the applicant’s friend had defaulted on a loan as claimed or that moneylenders had demanded payment from the applicant or threatened or assaulted the applicant or her family. The Tribunal went on at [37] to expand upon further basis upon which it did not accept that the applicant’s evidence was credible.
At [38] the Tribunal went on to conclude:
Having regard to the findings above, the Tribunal does not accept that the applicant faces a real chance of serious harm now or in the reasonably foreseeable future or a real risk of significant harm on return to Malaysia because she owes money to a money lender.[12]
[12] Court book page 140.
The Tribunal therefore concluded that the applicant did not meet the refugee criteria nor was the applicant a person in respect of whom Australia had protection obligations. The Tribunal therefore affirmed the decision not to grant the applicant a protection visa.
Application for judicial review filed 21 October 2016
On 21 October 2016, the applicant filed an application for judicial review of the Tribunal’s decision. That application contains 6 grounds of review which I will address in detail below.
At the hearing before me, the applicant appeared on her own behalf with the assistance of an interpreter. The applicant confirmed that notwithstanding orders made by Registrar Ryan on 26 April 2017, permitting her to file an amended application with proper particulars, any affidavits upon which she wished to rely and written submissions, the applicant had not filed any further material in support of her claim. Relevantly, order 6 of the orders made by Registrar Ryan provided:
Evidence of the contents of any sound recording be presented as a transcript verified by affidavit.
As stated, the applicant filed no further material in support of her application.
At the commencement of the hearing before me, and after explaining the role of this court on a judicial review application, and before turning to the specific grounds of review in her application, I invited the applicant to explain why she believed that the Tribunal’s decision was affected by jurisdictional error. In response, the applicant said that when the matter was heard by the Tribunal, she had difficulty understanding the interpreter or conveying her responses through the interpreter. She said that whilst the interpreter could understand her, she could not understand the interpreter and as such she was very anxious and was unable to answer questions asked of her.
The applicant also said that as a result she wants the opportunity to have a further hearing before the Tribunal so that she can properly explain her situation. The applicant concedes that she had a support person with her at the hearing, and whilst not entirely clear, it seems that the applicant now says that the support person also contributed to the difficulties she experienced before the Tribunal.
When asked about the grounds of review in her application, the applicant said that the support person who accompanied her to the interview before the Tribunal also prepared her application for review. She said that from her perspective, she was unable to explain herself properly at the Tribunal because of the interpreter and therefore she is asking for another chance to do so. She says that she was unable to say what she wanted to say, that she was guided by her support person and that she seeks another opportunity to meet with the Tribunal. The applicant otherwise had nothing further to add to the grounds of review raised in her written application.
The applicant further stated that as she has been unemployed for many years she could not afford a lawyer to represent her.
In response, to the applicant’s concern about the quality of interpretation at the Tribunal hearing, it was submitted for the first respondent that the question of the interpreter was addressed by the Tribunal at paragraphs [15] and [16] of the Tribunals’ reasons. The Tribunal considered the applicant’s concerns at paragraph [16] which is set out above.
For an applicant to establish they have been denied a fair hearing because of an interpretation issue, the applicant must show that the standard of interpretation at the hearing was so inadequate that the applicant was prevented from giving evidence. Alternatively, the applicant must show that the errors made in the interpretation were material to the conclusions made by the Tribunal and adverse to the applicant such that the decision making process miscarried.
As noted above, at the conclusion of the Tribunal hearing, the applicant was provided with an audio recording of that hearing and was invited to make any submissions that she wished prior to the final decision being made by the Tribunal. The applicant did not exercise this right.
Similarly, the applicant had the opportunity to provide a transcript to the court of that hearing to support her submissions that she was unable to understand what was being said or that she was unable to properly give evidence because of the poor interpretation. She has not done so.
As noted in WALN vMinister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at paragraph [29], the Full Court of the Federal Court said:
To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence … Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry …
Without a transcript or any further evidence there is nothing on the material to make out either of these basis. The applicant therefore has not established that there was an error in translations, or, more importantly that any such error constitutes a jurisdictional error.
Turning then to the grounds of review raised in the applicant’s application for judicial review.
GROUNDS OF REVIEW
Grounds 1 to 3
Grounds 1 to 3 take issue with the delegate’s decision and relevantly provide:
1.The Minister erred in law by taking into consideration facts not relevant to the matter in making the decision.
2.The Minister erred in law by not taking into considerations relevant facts in making the decision.
3.The Minister erred in law by not taking into consideration relevant Country information in making the decision.
As correctly submitted by the first respondent, the court does not have jurisdiction to review the delegate’s decision as it is a primary decision. Section 476(2) of the Migration Act 1958 (Cth) (‘the Act’) relevantly provides that this court ‘has no jurisdiction in relation to … a primary decision’. Section 476(4) defines a ‘primary decision’ to include a part 5 reviewable decision which includes the delegate’s decision. As such grounds 1 to 3 are not made out.
Grounds 4 and 5
Ground 4 says that the Tribunal took into account irrelevant considerations and ground 5 says that the Tribunal failed to ask a reasonable amount of questions to determine the applicant’s credibility.
As to ground 4, the applicant has not particularised what irrelevant considerations she says were taken into account other than to say that different answers to questions in the interview were used to discredit the applicant.
As to ground 5, as noted above, the Tribunal made various adverse credibility findings. The particular attached to ground five suggests that the Tribunal erred by failing to ask other questions of the applicant which may have supported her claim. This misunderstands the role of the Tribunal. It is for the applicant to raise matters relevant to her claim before the Tribunal. It is open to the Tribunal to ask questions of the applicant, for example, to resolve any credibility concerns that it might have. Moreover, on a fair reading of the Tribunal’s decision, the conclusions reached including on the question of credit, were reasonably open to the Tribunal.
For each of these reasons, grounds 4 and 5 are not made out.
Ground 6
Ground 6 claims that the Tribunal failed to properly taking into account the information provided by the applicant in considering the complementary protection provisions of the Act. The particulars raised under this ground relevantly says:
The Tribunal did not have the need to consider the Applicant under this provision simply because it had not established by any questioning that there was a genuine fear of the Applicant being returned to Malaysia. Failure to question the Applicant on this would have meant that the Tribunal had arrived at conclusions wrongly that the Applicant would not fit these criteria.
This ground again seems to suggest that the Tribunal erred by failing to inquire about certain matters of the applicant which might have supported her claim. For similar reasons to those discussed in relation to grounds 4 and 5, there is no obligation on the Tribunal to make the applicant’s case for her. Whilst it is entirely within the Tribunal’s authority to raise any questions about the applicant’s case which it considers relevant to the determination of the matter, the Tribunal is not required to ask questions of the applicant which might make out her claims.
Moreover, it is clear from a fair reading of the Tribunal’s reasons that the Tribunal clearly set out and understood the complementary protection provisions under the Act.[13] Moreover, the Tribunal concluded that having made the various findings set out at paragraphs [36] and [37], the Tribunal concluded that it was not satisfied that the applicant faced a real chance of serious harm or a real risk of significant harm on return to Malaysia because she owed money to a money lender. That finding and that conclusion was reasonably open to the Tribunal.
[13] See paragraphs [3] and [7] of the Tribunal’s reasons and the attachments to the decision record.
The Tribunal then set out its conclusions in relation to the complementary protection scheme at paragraph [40]. Again that conclusion was reasonably open to the Tribunal and does not disclose any jurisdictional error.
For each of these reasons, ground 6 is not made out.
CONCLUSION
As none of the grounds of review raised by the applicant, including those matters raised in oral submission, have been made out, I order that the applicant’s application be dismissed.
The first respondent also seeks an order for the record to be amended to reflect the current name of the first respondent. It is appropriate that such an order be made.
The first respondent also seeks an order for costs in the sum of $5,000. This amount is less than the scale amount. The applicant was invited to make submissions on the question of costs, in the event that the court found in favour of the dismissal of her application. The applicant simply submitted that she was not sure she would be able to meet such a costs order.
In all of the circumstances, I am satisfied that having been wholly unsuccessful in her claim, it is appropriate for an order for costs to be made in the first respondent’s favour in the sum of $5,000 as sought.
For each of these reasons, I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 17 December 2021
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