Deg22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 37
•25 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DEG22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 37
File number: PEG 182 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 25 January 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – reinstatement application – where acceptable explanation provided by the applicant – where there would be no prejudice to the Minister should the matter be reinstated – where no arguable case of jurisdictional error identified – application for reinstatement dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06 & 17.05
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36 & 476
Cases cited: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
DEG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 770
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2005] FCA 1066
MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530
NAKX v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1559
NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 112 Date of hearing: 27 October 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 182 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEG22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1.The application in a proceeding (filed on 12 September 2023) be dismissed.
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 KENDALL:
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (“CB”) 14). She first arrived in Australia in February 2017 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (the “ETA visa”) (CB 41).
On 4 May 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-34 & 41). In her visa application, the applicant claimed that she had left Malaysia because of “political issue[s] and economic issue[s]” and because she had “no job” and was not able to “support [her] family” or herself (CB 32). She also claimed to have applied for many jobs in Malaysia “but failed because of economy and political issue[s] in Malaysia”. The applicant also stated that her friend had suggested that she come to Australia (CB 33). In her visa application, the applicant answered “no” when asked if she had received assistance completing the visa application forms (at question six) and she asked that all communication about the visa application be sent to herself (at question 10) (CB 10).
On 18 August 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 41-49). The delegate considered the applicant’s “migration history and vague claims made” in her visa application and found that the applicant would not face a real chance of persecution if returned to Malaysia (CB 42).
On 21 August 2017, the applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 50-51). The applicant again requested that all correspondence be sent to her directly (as the review applicant) and provided the Tribunal with postal and email addresses to do so (CB 51).
On 4 April 2022, the applicant notified the Tribunal of her new residential address. The applicant’s email address remained unchanged (CB 56-57).
On 13 April 2022, the Tribunal invited the applicant (by letter sent via email) to provide information in relation to her visa application by completing questions contained in an attached “Applicant information form (s.424(2) response)” document (“information form”) (CB 58-60).
On 18 April 2022, the applicant returned the completed information form to the Tribunal via email (CB 61-67). In that information form, the applicant consented to the Tribunal “deciding the review without a hearing” (at question two) (CB 62).
On 28 April 2022, the Tribunal confirmed receipt of the information form and acknowledged the applicant’s consent to the Tribunal proceeding to make a decision on her review without a hearing (by letter sent via email) (CB 68-70). The Tribunal also gave the applicant another opportunity to provide any further submissions to the Tribunal by 11 May 2022 (CB 69).
Later that same day (also on 28 April 2022), the Tribunal notified the applicant (via email) that the due date for any additional material was in fact 12 May 2022 (CB 71).
No further submissions or materials were provided by or on behalf of the applicant.
On 16 August 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 74-85).
On 15 September 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”).
The Court notes that the applicant sought an extension of time in her judicial review application. As the application was filed within the requisite 35 days of the date of the Tribunal’s decision (as required by s 477(1) of the Act), no such extension of time was needed.
This matter was initially listed for a final hearing before this Court on 23 August 2023. When the matter was called, there was no appearance by or on behalf of the applicant. The Court dismissed the application pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) and ordered that the applicant pay the Minister’s costs.
On 12 September 2023, the applicant filed an application in a proceeding with a supporting affidavit seeking to have the proceeding reinstated.
On 27 October 2023, the Court heard submissions from the parties in relation to whether the application should be reinstated.
The Court had before it the applicant’s judicial review application and supporting affidavit, both filed on 15 September 2022, a Court Book numbering 86 pages (marked as Exhibit 2), written submissions filed on behalf of the Minister on 31 July 2023, an affidavit of service of Benjamin Mayne filed on 7 August 2023 (and taken as read and in evidence at the hearing on 23 August 2023) (the “Mayne affidavit”) and the application in a proceeding and accompanying affidavit filed by the applicant on 12 September 2023 (the affidavit being taken as read and in evidence at the hearing on 27 October 2023).
This judgment addresses whether the application should be reinstated.
For the reasons that follow, the Court has determined that the application should not be reinstated.
DISMISSAL FOLLOWING APPLICANT’S FAILURE TO APPEAR AT SCHEDULED HEARING
As noted above, the applicant did not appear at the hearing of this matter on 23 August 2023. The matter was dismissed and a judgment was published outlining the reasons why: DEG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 770 (“DEG22”).
The Court outlined some of the procedural background to this matter in DEG22. That background is relevant to this decision and is repeated below (with some minor amendments).
On 24 November 2022, orders were made by Registrar Carney of this Court programming the matter to a final hearing “on a date to be advised”.
On 3 January 2023, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for hearing before this Court at 11.00am on 14 August 2023.
On 11 August 2023, my chambers contacted the parties to advise that the hearing of this matter had been rescheduled to 23 August 2023 at 10.30am.
On 21 August 2023, the parties were reminded of the date, time and location of the hearing. They were also provided with instructions for an “in person” attendance at the Court.
When the matter came before the Court for hearing (on 23 August 2023), Mr Benjamin Mayne (“Mr Mayne”) appeared on behalf of the Minister. The matter was called three times but, as outlined above, the applicant did not appear in the court room.
The Court asked Mr Mayne how the Minister wished to proceed.
Mr Mayne advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules. He also sought the Minister’s costs, fixed in the sum of $6,500.
In support of that position, Mr Mayne sought to rely on the correspondence set out above in relation to the change to the hearing date and hearing arrangements (dated 11 August 2023 and 21 August 2023 respectively). That correspondence was tendered and referenced as Exhibit 1. Mr Mayne also sought to tender the Mayne affidavit. The material annexed to the Mayne affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should she not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs. The Mayne affidavit was taken as read and in evidence.
Noting the correspondence contained in the Mayne affidavit and Exhibit 1, the Court was satisfied that the applicant had been properly notified of the hearing date and time. The applicant was also properly advised in relation to how she could appear at that hearing and the consequences of non-appearance.
In relation to the costs order sought on behalf of the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Mr Mayne was prepared to make oral submissions as required by the Court.
The morning after the hearing (at 7.01am on 24 August 2023), however, the Court received notification of an email which had been quarantined by the Court’s “spam” filtering system. When that email was released, it was quite clear that the applicant had sent an email to the Court at 9.15am on 23 August 2023 (that is, prior to the scheduled hearing of this matter). That email read as follows (without alteration):
Hi, I am sorry to inform you that I can’t make it today because I’m not feeling well and I’m going to see the doctor soon. i will email you the medical certificate for you after my appointment. Thank you
No further correspondence or supporting evidence (for example, the foreshadowed medical certificate) was received by the Court.
Noting the contents of the applicant’s email to chambers, the Court provided the applicant with instructions in relation to how she could apply to this Court to have her matter reinstated pursuant to r 17.05(2)(a) of the Rules.
REINSTATEMENT APPLICATION
The applicant now seeks reinstatement via an application in a proceeding.
The application in a proceeding does not identify the basis upon which the applicant seeks the reinstatement. This is not a criticism. The applicant is unrepresented and the Court’s processes are complex.
In the circumstances, the Court infers that the applicant is seeking to set aside the Court’s orders made on 23 August 2023 pursuant to r 17.05(2)(a) of the Rules.
The applicant’s affidavit (filed with the application in a proceeding) states as follows (without alteration):
1. I, [the applicant], [address omitted], unemployed affirm:
I am the applicant and make this affidavit.
2. A copy of the court order on 23 August 2023.
3. I didn’t attend the hearing on 23 August 2023 due to medical condition.
4. I would like to reinstate this matter in court.
Annexed to the applicant’s affidavit was a copy of the Court’s orders made on 23 August 2023 and a medical certificate issued by a doctor on 23 August 2023. That medical certificate states:
[The applicant] has a medical condition and will be unfit for work from 23/08/2023 to 25/08/2023 inclusive.
The matter first came before the Court for a hearing of the application for reinstatement on 17 October 2023. The applicant appeared in person without legal assistance. At the applicant’s request, a Mandarin interpreter was made available (in person) to assist her during the hearing. Ms Georgina Ellis (“Ms Ellis”) appeared on behalf of the Minister.
Immediately prior to the commencement of the hearing, it came to light that, while the applicant had requested a Mandarin interpreter in her judicial review application made to this Court, she actually required a Malay interpreter. The Court delayed the commencement of the hearing and was able to arrange for a Malay interpreter to appear via video link to assist the applicant.
When the hearing commenced, the Court had a discussion with the parties and determined that, in the circumstances of this matter, it would be more appropriate to adjourn the hearing and to arrange to have an interpreter available in person to assist the applicant. The Court explained to the applicant that the matter would be adjourned until the end of the following week.
The matter came before this Court again on 27 October 2023 for a hearing of the application for reinstatement. The applicant appeared again without legal representation. She was assisted in Court by a Malaysian interpreter. Ms Ellis appeared again on behalf of the Minister.
The Court confirmed with the applicant that she had received a copy of the Court Book and the Minister’s written submissions.
The power to set aside a judgment or an order of the Court is discretionary. It requires the Court to consider whether it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50]-[52].
Noting that the applicant was unrepresented, the Court explained to the applicant that the matters which are generally considered in a reinstatement application include, but are not limited to:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the substantive application was dismissed;
(b)the existence and nature of any prejudice which might flow to the Minister from reinstatement. To the extent there is any prejudice, the Court will consider the extent to which that prejudice can be mitigated by other relief such as costs; and
(c)whether the applicant has a reasonably arguable prospect of success in relation to the substantive application.
See: MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530.
The Court also notes the comments made by Justice North in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2005] FCA 1066 as follows (emphasis added):
18.The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.
The Court invited the applicant to address each of the factors outlined above (where relevant or necessary) and to highlight anything that she considered relevant to her request for reinstatement. The applicant’s responses are discussed in the consideration that follows.
CONSIDERATION
Explanation
As outlined above, on 24 August 2023 (at 7.01am on the morning after the hearing), the Court received notification of an email which had been quarantined by the Court’s “spam” filtering system. When that email was released, it was evident that the applicant had sent an email to the Court prior to the hearing scheduled on 23 August 2023 (at 9.15am). That email read as follows (without alteration):
Hi, I am sorry to inform you that I can’t make it today because I’m not feeling well and I’m going to see the doctor soon. i will email you the medical certificate for you after my appointment. Thank you
The Court also notes that, as set out above, the applicant provided a medical certificate dated 23 August 2023 (annexed to her affidavit filed in support of her application in a proceeding to reinstate her application). That medical certificate stated:
[The applicant] has a medical condition and will be unfit for work from 23/08/2023 to 25/08/2023 inclusive.
The Court acknowledges that in ordinary circumstances, a medical certificate such as that provided by the applicant (detailed above) would be unsatisfactory on the basis that it does not address the critical question of whether (and if so, why) the medical condition would prevent her from participating effectively in a Court hearing: NAKX v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1559 (at [6]).
The Court is, however, satisfied that the applicant did what she could to notify the Court that she was unable to attend the hearing of the substantive application (scheduled to take place on 23 August 2023). The fact that a “glitch” in the Court’s technology meant that this was not made clear to the Court ahead of the commencement of that hearing is no fault of the applicant.
In the circumstances of this matter, the Court accepts the applicant’s explanation for failing to appear at the hearing and is satisfied that that explanation is entirely adequate. This weighs in favour of reinstating the substantive application.
Prejudice
The Court is satisfied that there is no prejudice to the Minister beyond the public interest in the finality of administrative decision making. The Court is also satisfied that any such prejudice could be mitigated by a costs order.
This also weighs in favour of reinstatement.
Merits
The most critical factor for consideration when determining whether to reinstate the substantive application is whether that substantive application for judicial review has any “arguable prospect of success”.
In this regard, the Court references comments made by Justice Mortimer (as the Chief Justice was then known) in CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 (in the context of considering the merits of an application for reinstatement) as follows:
4.…the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
5.However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.
6.The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what she thought the Tribunal “did wrong” in relation to her matter.
To assist the applicant, the Court explained to her that the only issue before the Court was whether there is an arguable case, viewed impressionistically, that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that she “did not know much about the Tribunal hearing because her husband was the one who had handled that”. When the Court asked the applicant about who had assisted her with her visa application, she initially told the Court that her husband had done so. Later, however, she suggested that she was assisted by an agent and that “when they wrote down the claims, they were not accurate in their entirety” and that it was “not explained to them how to fill in the forms so they did not know that what they were doing was incomplete”.
The applicant’s oral submissions will be addressed with her grounds of review below.
The Tribunal’s decision
In order to properly determine whether the substantive application for judicial review has “merit” (viewed impressionistically) it is useful to first set out the Tribunal’s decision.
The Tribunal’s decision in this matter is 12 pages long and spans 46 paragraphs (CB 74-85). The final three pages include extracts of relevant legislative provisions (CB 83-85).
The Tribunal began by explaining that the applicant had arrived in Australia in February 2017 as the holder of an ETA visa. The Tribunal explained that the applicant applied for the visa the subject of the review on 4 May 2017 and a delegate of the Minister refused to grant the applicant that visa on 18 August 2017. The Tribunal noted that the delegate had found that the applicant was not a refugee as defined by s 5H of the Act and that the applicant sought review of that decision by the Tribunal (at [1]-[3] & [6]-[7]).
The Tribunal summarised the applicant’s protection claims (as outlined in her visa application) as follows (at [4]-[5]):
a.The applicant claims she left Malaysia because of political and economic issues.
b.She fears she will have no job if she returns to Malaysia and that she cannot support himself and her family.
c. She claims that her friend suggested that she come to Australia.
d.She claims she applied for many jobs in Malaysia but failed because of “economy and political issue[s] in Malaysia”.
e.She claims the authorities cannot protect her because Malaysia has a bad economy, and the issue prevails in the whole of Malaysia.
The Tribunal explained that on 13 April 2022, it wrote to the applicant (pursuant to s 424(2) of the Act) and invited her to provide information to the Tribunal about her visa application. The Tribunal also noted that on 18 April 2022, the applicant consented (in writing) to the Tribunal deciding the review without a hearing and that the matter had therefore been determined on the evidence available to the Tribunal (at [8]-[10]).
The Tribunal listed the evidence before it and confirmed that it had also had regard to the Department of Foreign Affairs and Trade (“DFAT”) Country Information Report Malaysia (dated 29 June 2021) (the “DFAT report”) (at [11]-[12]).
The Tribunal then outlined the legislative criteria for the grant of a protection visa, summarising the requirements of the refugee criterion in s 36(2)(a) of the Act, the relevant definitional provisions in ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6) and 5K-LA of the Act and the complementary protection criterion in s 36(2)(aa) of the Act (at [13]-[17]).
The Tribunal then explained (at [18]) that, in assessing the applicant’s protection claims, and in accordance with Ministerial Direction No. 84 (made under s 499 of the Act), the Tribunal had regard to the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT. The Tribunal then outlined the legal principles applicable when assessing an applicant’s claims and evidence, including the making of any credibility findings (at [18]-[21]).
The Tribunal outlined that it was not required to make the applicant’s case and that the applicant was required to satisfy the Tribunal that the legislative requirements for the grant of the visa had been met. The Tribunal also set out the applicant’s protection visa claims (in full) (at [24]-[25]).
The Tribunal continued:
26.In her response to the Tribunal's s.424(2) invitation the applicant indicated, relevantly, that:
a.she did not wish the Tribunal to hear and take evidence from any witnesses;
b. she did not wish to add or update her claims for protection; and
c. there was no other information in her original visa application forms that she wished to update.
27.The delegate's decision record put the applicant on notice that the Department did not accept her claims for protection. The applicant did not avail himself of the opportunity of a Tribunal hearing. Consequently, the Tribunal was unable to explore the applicant's claims with her.
The Tribunal accepted that the applicant did not wish to return to Malaysia because she believed that she would be unable to earn a wage there sufficient to support her family or herself. However, it recorded that the applicant made no claim that this would result from one or more of the reasons set out in s 5J(1)(a) of the Act. The Tribunal also noted that without a link between one of the characteristics (set out in s 5J(1)(a) of the Act) and the persecution they fear, a nexus between the persecution of that individual and the Act was “simply not established”. Further, the Tribunal found that the applicant’s reference to “political issues” was “vague, unsubstantiated and unpersuasive” (at [28]-[29]).
The Tribunal set out some relevant information from the DFAT report and, based on that country information, the Tribunal was “not persuaded that the applicant would be subjected to significant hardship in Malaysia that threatens her capacity to subsist” and, accordingly, found that the applicant did not “have a well-founded fear of persecution based upon a claim of economic hardship” (at [30]-[32]).
The Tribunal accepted that the applicant had concerns about being able to find work and about the general economic conditions in Malaysia. The Tribunal also accepted that the applicant may initially have some difficulty in doing so. However, as explained by the Tribunal, the applicant did not suggest that she would be harmed by any group relating to her economic situation or that she has been discriminated against or prevented from obtaining work in Malaysia. The Tribunal found that any economic hardship that the applicant might experience in Malaysia would not amount to significant harm (at [33]-[34]).
Having considered the applicant’s claims individually and cumulatively, the Tribunal found that there was no real chance that the applicant would suffer persecution for any of the reasons set out in s 5J(1)(a) of the Act (or for any other reason) if she was returned to Malaysia now or in the reasonably foreseeable future. Accordingly, the Tribunal found that the applicant did not satisfy s 36(2)(a) of the Act (at [35]).
The Tribunal was also not satisfied that there was a real risk that the applicant would suffer significant harm for any of the reasons claimed if she returned to Malaysia now or in the reasonably foreseeable future. It therefore found that the applicant did not satisfy s 36(2)(aa) of the Act (at [38]-[39]).
The Tribunal ultimately determined that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act or the alternative criterion in s 36(2)(aa) of the Act and affirmed the delegate’s decision refusing to grant the applicant the visa (at [43]-[46]).
Substantive application for judicial review
The application for judicial review filed by the applicant on 15 September 2022 contains three “grounds of review” as follows (without alteration):
1.My application has refused because did not meet the criteria of subsection 36(2) of migration act 1958.
2.The protection claims in my application is not true and filled without my clear concern by an individual who received my payment for the service. The agent refused to continue his service because I didn’t clear the balance due to my financial hardship.
3.I sincerely appeal to the federal circuit court for considering to review my court proceeding. I currently do not have any supporting documents to submit with this review. I am still seeking for legal aid service to help me in this matters.
Grounds one and three
Grounds one and three state:
1.My application has refused because did not meet the criteria of subsection 36(2) of migration act 1958.
…
3.I sincerely appeal to the federal circuit court for considering to review my court proceeding. I currently do not have any supporting documents to submit with this review. I am still seeking for legal aid service to help me in this matters.
Ground one is a factual matter. This is not in contention. It does not identify any arguable case of jurisdictional error on the part of the Tribunal.
Ground three is a plea for relief. This ground does not identify any jurisdictional error on the part of the Tribunal.
Insofar as the applicant raises concerns about being unable to obtain legal assistance, the Court is sympathetic. However, there is no right to legal representation in migration proceedings before this Court: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099.
No arguable case of jurisdictional error arises in relation to grounds one or three.
Ground two
Ground two states (without alteration):
2.The protection claims in my application is not true and filled without my clear concern by an individual who received my payment for the service. The agent refused to continue his service because I didn’t clear the balance due to my financial hardship.
To the extent that the applicant raises any concerns about the conduct of her “agent”, the Court notes that there is no evidence in the Court Book to suggest that the applicant ever engaged an agent to assist her (either with her visa application or her Tribunal review application).
As outlined above, the applicant was not entirely clear in her oral submissions before this Court about who had assisted her with completing her visa application (and whether that person was an “agent” or her husband). However, the applicant (in both ground two above and her oral submissions) raised concerns about the information in that visa application being “incorrect” or “incomplete”.
In this regard, the Court notes that in her visa application, the applicant answered “no” when asked if she had received assistance completing the visa application forms (at question six) and asked that all communication about her visa application be sent to herself (at question 10) (CB 10).
The applicant did not provide any further information or have any further communications with the Department after her visa application was lodged.
The Court also notes that, in her Tribunal review application, the applicant again requested that all correspondence be sent to her directly (as the review applicant) and provided the Tribunal with postal and email addresses to do so (CB 51).
On 4 April 2022, the applicant notified the Tribunal of her new residential address. The applicant’s email address remained unchanged and appeared to be an email address that was personal to the applicant (CB 56-57).
On 13 April 2022, the Tribunal provided the applicant with an information form and asked her to provide information in relation to her visa application by completing that information form (CB 58-60).
On 18 April 2022, the applicant returned the completed information form to the Tribunal via email (CB 61-67). In that information form, the applicant:
(a)consented to the Tribunal “deciding the review without a hearing” (at question two) (CB 62);
(b)indicated that she did not want the Tribunal to “hear and take evidence from witnesses” (at question three) (CB 62);
(c)indicated that she did not want to “add to or update [her protection] claims” provided in her visa application (at question four) (CB 63);
(d)indicated that there was no “other information in [her] original protection visa application form(s)” she wished to change or update (at question five) (CB 64); and
(e)indicated that there was no “other information [she] would like the Tribunal to be aware of” (at question 12) (CB 66).
On 28 April 2022, the Tribunal confirmed receipt of the information form and acknowledged the applicant’s consent to the Tribunal proceeding to make a decision on her review without a hearing (CB 68-70). The Tribunal also gave the applicant another opportunity to provide any further submissions to the Tribunal by 12 May 2022 (CB 69 & 71).
No further submissions or materials were provided by or on behalf of the applicant.
As set out above, there is no information before the Court to suggest that there was ever an agent appointed to assist the applicant with her visa application. Further, even if the applicant had obtained some assistance with completing her visa application form (and the information in those forms was incorrect or incomplete as the applicant now seems to claim), the Tribunal gave the applicant multiple opportunities to correct any information or to provide any additional information or submissions to the Tribunal in support of her visa application. The applicant did not avail herself of those opportunities.
The Court also notes that an applicant is taken to have completed a visa application form if “he or she causes it to be filled in or if it is otherwise filled in on his or her behalf”: s 98 of the Act. This is the case, even in circumstances where the application form is filled in by his or her agent (or another person) and that agent (or other person) provides incorrect information: SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 (“SZGJO”) at [16]; NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 (“NAWZ”) at [16]. Further, where an application is filed on an applicant’s behalf, pursuant to s 98 of the Act, the applicant will be “fixed with responsibility for the actual content of [the] false application [which is] filed on his [or her] behalf”: NAWZ at [16]. This will be the case regardless of whether the applicant was aware of the contents of the application or authorised the inclusion of any incorrect information: SZGJO at [7]-[8].
No arguable case of jurisdictional error arises in this regard.
Reading the applicant’s grounds of review as broadly as possible, to the extent that the applicant is claiming that her “agent’s” conduct amounted to a fraud on the Tribunal, the Court disagrees for the reasons that follow.
As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (citing Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81]), when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with its obligations under Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process. Negligence, incompetence or bad advice (while unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
As detailed above, there is no evidence before this Court to suggest that there was an agent appointed to assist the applicant with her visa application. Further, even if an “agent” had assisted the applicant with completing her visa application, the Tribunal offered the applicant multiple opportunities to correct or add to any of the information in her original visa application. The applicant did not do so.
The Court does not consider that what the applicant described to the Court would amount to a fraud on the Tribunal. Even if an agent were assisting and had incorrectly completed her visa application or omitted some information, that would likely only amount to negligence or incompetence on the part of the agent. In the absence of any evidence of such an agent being involved in this matter, the Court makes no findings about any agent in this regard.
No arguable case of jurisdictional error arises in this regard.
Further – errors in referencing the applicant in the Tribunal’s decision
Although not raised by the applicant, the Court notes that the Tribunal has referenced the applicant in four separate paragraphs in its reasons as follows (emphasis added):
5.In her protection visa application forms, the applicant makes a series of claims which may be summarised as follows:
…
b.She fears she will have no job if she returns to Malaysia and that she cannot support himself and her family.
…
8.On 13 April 2022 the Tribunal wrote to the applicant pursuant to s.424(2) of the Act, inviting the applicant to provide information to the Tribunal in writing about himself and her application. The invitation specifically stated:
…
27.The delegate's decision record put the applicant on notice that the Department did not accept her claims for protection. The applicant did not avail himself of the opportunity of a Tribunal hearing. Consequently, the Tribunal was unable to explore the applicant's claims with her.
28.The Tribunal accepts that the applicant does not wish to return to Malaysia because she believes that she would be unable to earn a wage there sufficient to support her family or himself. However, the applicant made no claim that this circumstance would result from one or more than one of the five reasons enumerated in s.SJ(1)(a) namely race, religion, nationality, political opinion, or membership of a particular social group.
The Court also notes that, occasionally, the Tribunal, “like other decision-makers, deliver reasons for decision without [one hundred percent] proofreading. Occasionally mistakes are not discovered even when the best of proofreaders have examined draft reasons.”. Further, the existence of a typographical errors does not necessarily demonstrate an error in the Tribunal’s decision: Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875 at [48].
The Court considers the errors in this matter to be no more than typographical errors. It is clear from the remainder of the Tribunal’s decision that the Tribunal has referenced the correct applicant, her case, correct dates and the relevant evidence before it. Whilst this is an unfortunate oversight, and something that should be avoided, it does not point to any arguable case of jurisdictional error on the part of the Tribunal.
The Court is satisfied that no arguable case of error arises in this regard.
Conclusion regarding merits of the substantive application
The applicant’s “grounds of review” and oral submissions in this matter, assessed at a reasonably impressionistic level, do not identify any arguable case of jurisdictional error on the part of the Tribunal. Further, the Court has itself been unable to identify any arguable grounds of error of the sort that this Court can address.
This weighs heavily against reinstating the application.
CONCLUSION
Whilst the applicant provided a satisfactory explanation for her failure to appear at the hearing of the substantive application and there is no prejudice to the Minister if the application is reinstated, the Court considers that the lack of any arguable case of jurisdictional error on the part of the Tribunal (judged at an impressionistic level) are such that it is not in the interests of the administration of justice for the Court to reinstate the substantive application.
The application in a proceeding (filed on 12 September 2023) is, accordingly, dismissed.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 25 January 2024
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