DER18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 61
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DER18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 61
File number(s): MLG 1776 of 2018 Judgment of: JUDGE CUTHBERTSON Date of judgment: 23 January 2025 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming decision not to grant a visa – protection claim relating to alleged debts – allegation person assisting applicant with visa application failed to include relevant information – whether there was third party fraud on the Tribunal – whether issues with the interpretation of the Tribunal proceedings gave rise to material unfairness – whether the Tribunal overlooked the applicant’s claims – adverse credibility findings – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 425, 427, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07, 7.01, 7.02
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 25 November 2024 Date of hearing: 25 November 2024 Place: Melbourne Applicant: In person Counsel for the First Respondent: Mr C. Orchard Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1776 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DER18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.Pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), the application filed 20 June 2018 is taken to be amended so as to seek a writ of mandamus.
4.Pursuant to rr 1.07 and 7.02 of the Rules, the Court dispenses with the need for an amended application referred to in order 3 above to be physically made, filed or served.
5.The applicant’s application for judicial review filed on 20 June 2018 is dismissed.
6.The applicant pay the first respondent’s costs of and incidental to these proceedings, fixed in the sum of $5,000.00.
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 CUTHBERTSON
INTRODUCTION
The applicant is a citizen of Malaysia who arrived in Australia on 19 September 2016 on a visitor visa. On 27 October 2016, the applicant applied for a Protection (Class XA) (Subclass 866) visa. His claim for protection arose in the context of a business buying and selling cattle. He claimed payments he made in the course of those dealings were fraudulently diverted and he was in debt to his suppliers in Thailand. He claimed if he returned to Malaysia, he would be hunted and forced to pay the debt.
A delegate of the first respondent (the Minister) refused to grant the visa. The applicant applied to the Administrative Appeals Tribunal for a review of that decision on 28 March 2017. On 31 May 2018, the Tribunal affirmed the delegate’s decision. The applicant has now applied for judicial review of that decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
The Minister opposes the application. For the reasons that follow, the application is dismissed.
BACKGROUND
Visa application and delegate’s decision
The applicant's claim for protection set out in his visa application notably did not allege that he had experienced harm in Malaysia. He also advised in his application that he did not think he would be harmed or mistreated if he returned to Malaysia. He claimed the authorities would not protect him if he returned to Malaysia because he did not have enough evidence to prove he was innocent and did not owe the money.
The delegate found that the applicant was not a person in respect of whom Australia has protection obligations or a member of the same family unit as a person to whom such obligations are owed as set out in s 36(2) of the Act. The delegate outlined the applicant claimed to fear harm because he was being targeted by loan sharks due to a debt owed to them. This was inaccurate because the applicant made no mention of loan sharks in his visa application and also denied he had experienced harm or believed he would experience harm if he went back to Malaysia. Having found the applicant did not meet the refugee criteria under s 36(2)(a) because he had not claimed being targeted for any of the reasons mentioned in s 5J(1)(a), the delegate then assessed the applicant against the complementary protection criteria under s 36(2)(aa) of the Act. The delegate found that despite inadequacies in policing practices in Malaysia, the applicant could obtain from Malaysian authorities protection such that there would not be a real risk he would suffer significant harm and, therefore, he did not meet the complementary protection criteria.
Application for review to the Tribunal
On 28 March 2017, the applicant applied to the Tribunal for a review of the delegate's decision. On 31 March 2017, the Tribunal wrote to the applicant acknowledging receipt of his application for review. In that letter, the Tribunal advised that if the applicant wished to provide material or written arguments for it to consider, he should do so as soon as possible.
On 31 October 2017, the Tribunal wrote to the applicant advising that having considered the material before it, it was unable to make a favourable decision on that information alone. The letter invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case on 1 December 2017. The letter also requested that the applicant read, complete and return an enclosed ‘Response to hearing invitation - MR Division’ form. He was also asked to use this form or attach any additional information if he had any requests or new information which he wished the Tribunal to consider. There is no record of the applicant providing a completed form to the Tribunal prior to the hearing of his application for review.
The Tribunal’s hearing was conducted by video conference on 1 December 2017 with the assistance of an interpreter in the Malay language. According to the hearing record it appears the Tribunal received no documents during the course of the hearing. The hearing commenced at 11.27am and concluded at 1.19pm.
On 7 May 2018, the Tribunal emailed the applicant advising the member who was conducting the review had requested he provide “the police report …referred to and read out at the Tribunal hearing on 1 December 2017”. The Tribunal advised the applicant to provide the original report or a certified copy to the Tribunal’s Sydney office by 21 May 2018. The applicant was also advised that if he did not provide the report by that date, the member may proceed to make a decision on the review without taking any further action to obtain the report from him.
On 13 May 2018, the applicant requested further time to provide the original report. He advised he needed to receive the original report from Malaysia and explained he could not provide a certified copy without the original. He advised he was waiting for family members to post it.
On 15 May 2018, the Tribunal responded as follows:
I am writing in relation to your request for an extension of time to provide the document requested by the Tribunal.
Before making a decision on whether an extension will be granted, the Member has requested you provide the police report you read out at the hearing, even if it is an uncertified copy, by the due date of 21 May 2018.
The Member would also like to know why you did not inform the Tribunal that the original police report was in Malaysia when it was first requested. In addition to this the Member would also like to know why you did not bring the original police report with you from Malaysia given its in relation to your protection claims.
Upon review of the above requested document and information the Member will make a decision on whether to grant an extension of time to provide the original police report.
Please provide the Tribunal with the above requested material by 21 May 2018. Failure to do so may result in the Member proceeding to make a decision on your review without taking any further action to obtain the material from you.
The applicant responded to the Tribunal by email on 15 May 2018 as follows:
I am very sorry not inform tribunal my original report is in Malaysia. I am really dont know. As the member just asked either i have police report for my case. I said yes and i read out at the hearing. I thought it is ok without original report as the member not tell me anything about the report after hearing.
I am not bringing the original report because i will more in trouble if the original report is missing. As i told the member at the hearing, i had move more than 1 place so i keep it filling.
I am very sorry for this matter because i dont know the procedure. Should i send uncertified copy first?
The applicant was advised by email dated 16 May 2018 to send the uncertified copy before 21 May 2018 to the Tribunal so the member could assess whether to grant and extension for the applicant to obtain the original report. The applicant sent a photocopy of the police report to the Tribunal by express post. The Tribunal received the document on 17 May 2018.
On 31 May 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant's visa.
THE TRIBUNAL’S DECISION
At [3]-[7] of its statement of decision and reasons, the Tribunal first set out the criteria for protection visas. The Tribunal also noted at [8] it had regard to departmental policy guidelines to the extent they were relevant as was required by Ministerial Direction No. 56. The Tribunal noted at [10] the issue in this case was the applicant’s credibility.
The Tribunal noted the applicant confirmed during the hearing that the information in his visa application was true and correct. Against this background, the Tribunal outlined its assessment of the applicant’s credibility as follows:
17. I found the applicant applicant's testimony to be most unsatisfactory particularly because it shifted and changed during the course of the hearing and was inconsistent with his protection visa application. I elaborate below.
18. At the beginning of the hearing I noted that the applicant had stated in his protection visa application that he had not been harmed in Malaysia and did not think he would be harmed or mistreated if he returned. I questioned how then he was a refugee or owed complementary protection if he did not face serious harm or significant harm. He responded that at the end of 2015 he had a cattle business supplying cattle to farms; he would give money to a friend who then got the cattle for him. He said that occurred four times but the money was not passed on to the right person, his friend ran away with the money. The applicant said he was left with a lot of debts, he couldn't work, and he had problems with the bank. He said he did not know what would happen to him so he fled because he was 'finished'. I questioned how that indicated that he faced serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion, or significant harm. He responded by asking what would happen if he said he was threatened by outsiders. I suggested a citizen who was threatened might seek the protection of the authorities in their country of nationality. At that point the applicant said he had made a police report in Malaysia on 25 July 2016. He then read out the following which he said was in the police report he had made:
This is in regards to the 25 December 2015, the buying process for buying cattle in Thailand. This transaction was supposed to be a smooth transaction with no problems but after a few transactions for which I did pay and receive cattle, apparently the person did not pay the money which caused a lot of problems and I was harassed and I have paid for it but the money was not paid to the right person and my family and myself were threatened and so I report to police because I need to be safe for myself and my family.
19. In contrast to the above, the applicant's protection visa application suggests that he was subjected to one threat - a telephone call during which he was told he had a lot of debt and would need to pay before any action was taken against him. There is no indication in the protection visa application that the applicant received any other threats or was subjected to any other harassment, or that his wife and children were harassed or threatened, or that the applicant went to the police because he and his family were harassed and threatened. The applicant offered no explanation at that point for why his application stated that he had not been harmed in the past nor did he think he would be harmed or mistreated if he returned to Malaysia. I expect that if the applicant, his wife and children were threatened and harassed as he claimed at the hearing that those claims would have been made in his protection visa application or that he would have mentioned them when I first noted that his protection visa application stated he had not faced any harm in Malaysia nor did he think he would be harmed or mistreated if he returned. I deal with this issue further below.
20. In addition, the only debt referred to in the applicant's protection visa application relates to money that was not passed on to the Thai people who supplied the applicant with cattle. There is no mention in the application of the applicant having other debts, not being able to work or having problems with the bank. In fact, after the applicant testified that he had an import-export business in addition to the cattle business, his wife worked, they had a carer for their children and the amount of money the cattle suppliers wanted was 16,000 MYR, he agreed when I suggested that it seemed the amount of money was not a large sum and he could have afforded to pay it. This indicates that, contrary to the applicant's initial testimony, he did not have to leave Malaysia because he had many debts, could not work and had bank problems. Further, although the applicant initially agreed he could have paid the 16,000 MYR, he questioned why he should have done so given he had already paid for the cattle. I suggested he could have done so to avoid the harassment and threats he claimed he; his wife and children were subjected to and to avoid having to leave his country. The applicant then said he could not pay and that he had to flee because the cattle was the bulk of his business, his second child had died which left him with many expenses and the carer disappeared. I do not accept that the cattle business was the bulk of his business activity. In his earlier testimony the applicant gave the impression that his import/export business was a significant business, stating that it was established in 2012 and involved supplying 'everything' including wet and dry goods while the cattle business was established in December 2015 and involved just 4, 5 or 6 transactions over a period of a few months which valued only 16,000 MYR. It seemed to me that the applicant simply changed his evidence when it appeared that an adverse inference might be drawn from his earlier testimony. That indicates that rather that giving a truthful account of his circumstances he invented evidence to support his claims.
…
22. As indicated above the applicant claimed at the hearing that he, his wife and children were harassed and threatened. However, I found his testimony about the alleged threats and harassment vague and unforthcoming. Asked what threats and harassment he and his family had been subjected to, the applicant referred to a person threatening to destroy his business and shop, and that his children were disturbed and harassed at school. He gave no details of any threats or harassment directed at his wife. Asked who the person was who made the threat against him, the applicant said they were Thai and then said it was a different person every week and that he would be harassed when he left his house to go to his shop. Asked how often he was harassed and over period of time, the applicant's response was not clear. He began by saying it was in June but then corrected himself and said it was the end of May without specifying what happened at that time or how often. He then referred to going to Mecca for about a month, being threatened on his return, making a police report, being threatened every day, and said that was the 'last time' without specifying what happened the last time or when the last time was. He then referred to the period from the end of August until the beginning of September without specifying what, if anything, happened during that time or how often, then said that he arrived in Australia on 21 September and that he left Malaysia due to the harassment and threats. The response and the manner in which it was delivered was very similar to the response he gave when I had asked earlier about the timing of the police report he had made. On both occasions it appeared that the applicant was attempting to craft his testimony about the threats and harassment to fit in with the timing of his pilgrimage, the date of the police report, and his departure from Malaysia for Australia rather than a spontaneous response based on his actual personal experiences.
23. In addition, the testimony the applicant gave that he was repeatedly harassed and threatened in Malaysia on a weekly and/or daily basis appears inconsistent with his protection visa application which states that he was not harmed in Malaysia. Asked to explain, the applicant replied that he could not recall and could only remember the main points. When I questioned how he could forget being harassed and threatened, he then claimed he was not good at talking, his education was only so-so, a friend had filled in his application, he had promised to tell the Tribunal the truth, and he did not know whether what his friend had written was right or wrong but he had told his friend what to write. I do not accept those explanations. Firstly, the applicant made his protection visa application a little over a month after he claims he left Malaysia because of the harassment and threats. I do not accept that within a matter of a month or few months of being so harassed and threatened that he felt he had to leave his home country, his wife and two young children he could fail to recall the harassment and threats or that would not consider threats and harassment he reported to the police to be 'main points' worthy of inclusion in his application. Secondly, the applicant demonstrated no difficulty talking at the hearing. On the contrary he spoke assertively and with ease. Thirdly, I do not accept that his education could have affected his ability to recall or recount events he claims to have experienced a month or few months before he made his application. Fourthly, the applicant stated in his protection visa application that he had completed it without assistance. Finally, I do not find it credible that a friend would fail to record that the applicant had been harassed and threatened if the applicant had told his friend to write about it in the application.
24. Lastly, the applicant testified that he moved to different places in Malaysia for safety but the Thai people kept looking of him and followed him from place to place. That however is inconsistent with his protection visa application which states that he did not try to move to another part of Malaysia for safety. When I put that inconsistency to the applicant he replied that it was his friend's fault, what his friend had written about not having moved to another part of Malaysia was different to what he had told his friend. I do not accept that explanation. The applicant offered no credible explanation for why his friend would incorrectly write that the applicant had not tried to move to another part of Malaysia if he had told the friend that he had in fact moved.
25. In light of the issues with the applicant's testimony, I found him thoroughly lacking in credibility. l find he was not a witness of truth. As a result of his lack of credibility I give no weight to the police report.
Subsequently, the Tribunal then made the following findings:
27. Having found that the applicant was not a credible witness and given no weight to his police report, I reject the protection claims he has made in his protection visa application and at the hearing in their entirety. That means I do not accept that the applicant set up a cattle business or that he gave a person money to buy cattle which was not passed on to the suppliers of the cattle. I do not accept that Thai suppliers of the cattle asked the applicant for money which was not passed on or owed to them, or that they or anyone acting of their behalf harassed, threatened or harmed the applicant, his wife or his children in any way. I do not accept that the applicant made a report to the police because he, his wife and children were threatened and harassed in relation to any cattle business or transactions. I do not accept that the applicant left Malaysia due to any harassment, threats, problems related to a cattle business, debts, bank problems, or because he could not work or was 'finished'. I do not accept that the applicant will be hunted down by anyone or forced to pay any debt if he returns to Malaysia. I thus find that the applicant would not face serious harm or significant harm if he returned to Malaysia.
28. As I have rejected the claims made by the applicant and found that he would not face serious harm if he returned to Malaysia, I find that that he does not have a well-founded fear of persecution within the meaning of s.5J and thus is not a refugee as defined in s.5H. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Consequently, the Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations.
APPLICATION FOR JUDICIAL REVIEW
The application sets out six grounds of review as follows:
1. I am a Malaysian national and came to Australia and made an application for Protection Visa on 27 October 2016 on the basis fear for my life in my home country. Application was refused by DIBP on 20 March 2017 and then decision was taken to review authority. AAT scheduled hearing and decision was affirmed by AAT. I would like to make an appeal application with FCC to seek new orders and replace orders made by AAT.
2. I would like to advise the grounds of my application so that FCC could see an error made by AAT. There is great deal of business dealing between Malaysian and Thailand people in livestock. I was also part of the business where I would buy stock and sell in Malaysia and other way around. I was deceived by my business associates where I was not at blame and no unfair dealing with people working with.
3. I was robbed money and then my creditors never received those payment because a middle man had taken all the money and run away. I was chased for large sum cash which I could not produce from anywhere and then I was threated to be killed or kidnapped. Upon taking this matter to police it was treated as a civil matter and refused to be protected by police and however, Malaysian police is very corrupt and won't help anyone who does not pay them for protection.
4.My safety has been sacrificed and no one was willing to help me and that's the reason I have come to Australia to save myself and applied for protection visa. AAT has heard all the evidences and refused to accept that fact that I could be in danger upon return to Malaysia. AAT does not see this as major issues and declared that I do not meet definition of refugee. I believe AAT has overlooked my claim and did not gauge the sensitivity of this matter. Therefore, I believe AAT has made an error in law while interpreting definition of refugee and also treated my unfairly when refused to accept my claim. My wife and child are already left Malaysia because of same issues and has made application for protection visa. If there was no fear for our safety we would have not left our home country.
5. I request to FCC that AAT has made a Jurisdictional error and this decision need to be remitted back to AAT and new order should be made replacing old orders made by AAT.
6. I request to FCC to accept my application and review this matter so I could get fair justice on my matter.
The applicant also filed an affidavit in support of the application on the same day attaching the Tribunal’s decision.
On 2 October 2019, procedural orders were made to ready the matter for a final hearing. These orders required the applicant to file and serve 28 days before the hearing date any amended application with proper particulars of the grounds of the application, any affidavits, a supplementary court book, if any, and written submissions. No further materials were filed by the applicant in accordance with those orders.
On 7 November 2024, the Minister filed an outline of submissions. The Minister also filed an affidavit of Mr C. Orchard affirmed on 7 November 2024, attaching a copy of the Malaysian police report provided by the applicant to the Tribunal.
HEARING OF APPLICATION
The hearing of the application was conducted in this Court on 25 November 2024. The applicant appeared unrepresented with the assistance of an interpreter in the Malay language.
I spent some time explaining the nature of the Court’s jurisdiction and my role in these proceedings. I also explained the role of the Court was limited to identifying whether the Tribunal made any serious legal errors when conducting its review of the delegate’s decision. Examples of such errors were identified including whether the Tribunal misapplied the law, failed to follow appropriate procedures, failed to take into account relevant information or took into account irrelevant information. I explained the Court was not able to look at the evidence again, make a different decision and give him a visa. I explained the remedy available if his application succeeded was to send the matter back to the Tribunal to decide again.
The applicant was taken to the materials before the Court, namely the application (received into evidence and marked A1), the Court Book filed by the Minister on 11 October 2019 (received into evidence and marked R1), the affidavit of Mr C. Orchard affirmed 7 November 2024 (received into evidence and marked R2) and the Minister’s submissions.
The applicant objected to the Court Book on the basis he was “cheated” and what he requested to be included in the Court Book was not included. It became apparent that what the applicant was referring to was his visa application and not the Court Book. I went through the documents included in the Court Book with the applicant. He agreed the documents all related to his application for judicial review. I, therefore, admitted the Court Book into evidence. The applicant had brought his copy of the Court Book with him to Court. He agreed he had received a copy of the Minister’s submissions and advised he had read them.
CONSIDERATION
The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision, and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicant’s claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicant if he establishes the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(h)failing to observe some applicable requirement of procedural fairness.
Applicant’s submissions
The applicant submits his “friend” completed his visa application and application to this Court. He clarified he understood the “friend” he referred to throughout the hearing was a migration agent. He says told his agent he was harmed, and his family was being threatened, however this information was not included in his application.
The applicant also submits that on the day of the Tribunal hearing, the information he relayed to the interpreter was misinterpreted. I asked the applicant how he knew there was a problem with the interpretation. He stated he understood English to a certain degree. The particular information he says was not interpreted concerned his evidence that he had moved within Malaysia to avoid harm. I took the applicant to the Tribunal decision and highlighted his evidence in respect of both of these matters were recorded and taken into consideration in the Tribunal’s decision.
The applicant requested an adjournment to file a further affidavit supporting his claims his agent failed to put the relevant information into his visa application and the interpreter at the Tribunal hearing inaccurately interpreted his evidence. In respect of the issue with interpretation, the applicant told the Court he raised the error during the review hearing and the issue was corrected. He said there were no further errors in interpretation during the course of the review hearing.
The Minister strongly opposed the request for the adjournment, submitting the applicant’s evidence regarding the agent’s failure to include matters in the application was before the Tribunal but rejected. The Minister also submitted the high threshold for fraud had not been met by the applicant, citing SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35.
I refused the application for an adjournment. It is apparent the Tribunal was aware of the applicant’s claims that his agent did not include relevant information in the visa application. There is no suggestion the applicant sought an adjournment from the Tribunal to put on further evidence in respect of that issue. It is also apparent the Tribunal had before it the evidence the applicant says was not correctly interpreted. On that basis, I could not see how any material the applicant proposed to file would be relevant to his judicial review application. I agreed with the Minister and refused the applicant’s request for an adjournment.
The applicant’s grounds of review principally consist of a narrative outlining the basis of his protection claim. In respect to ground 4 of his application, I asked the applicant how the Tribunal made an error in law while interpreting the definition of refugee in his case and how he was treated unfairly when his claim was refused. He stated he was unsure how the Tribunal misinterpreted the definition of refugee. He also explained he was treated unfairly by the Tribunal because he was not given the opportunity to prove someone else completed his visa application.
Minister’s submissions
The Minister submits that to the extent the applicant’s grounds of review seek a review by this Court of his substantive claims for the protection, they amount to impermissible merits review and should be dismissed: Liang at 272. In respect of ground four and the allegation the Tribunal made an error of law when interpreting the definition of refugee, the Minister submits there is no error in the manner in which the Tribunal construed and applied the test in s 5H or s 36(2)(a) of the Act. The Minister also submits there was no error in the Tribunal’s application of the complementary protection criteria in s 36(2)(aa) of the Act. The Minister submits the Tribunal rejected all of the applicant’s claims to fear harm in their entirety on the basis of comprehensive adverse credibility findings that were open to it following its assessment of the evidence for the reasons it gave. Having rejected those claims, the Minister submits the Tribunal was entitled to find the applicant did not meet the criteria under ss 36(2)(a) and 36(2)(aa). The Minister also submits the criteria for the visa were accurately summarised by the Tribunal. The findings of the Tribunal on the criteria were also consistent with s 36 of the Act.
Was the Tribunal’s decision affected by fraud?
As noted, the applicant’s submissions were principally directed at his claim his “friend” completed his visa application and inaccurately recorded his protection claim. The particular information that was alleged to have been omitted concerned the applicant’s claim to have suffered harm in the past, that he feared harm if he returned to Malaysia and that he had moved within Malaysia to avoid the threats he claims to have received.
I have already noted that I refused to adjourn the hearing to allow the applicant to put on further evidence regarding his allegations concerning his friend essentially because I was not satisfied the matters raised by the applicant in this context relevantly constituted a fraud. Where third party fraud is alleged, the ultimate issue is the affect upon the Tribunal’s decision-making processes set out in the Act, that is, was there a fraud “on” the Tribunal such that it is disabled for constructively exercising its jurisdiction: SZFDE at [47], [51] and [52]. Fraud in this sense is to be distinguished from circumstances in which a person’s conduct before the Tribunal has been affected to the detriment of that person by negligence or inadvertence: SZFDE at [53]; Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [33].
In my view, nothing raised by the applicant is capable of establishing the Tribunal was disabled from constructively exercising its jurisdiction to undertake a review pursuant to Pt 7 of the Act. First, the applicant’s explanation for the omission of critical matters from his visa application was before the Tribunal. Secondly, it is difficult to discern any allegation that the “friend” was anything other than negligent in the way in which the visa application form was completed. Such negligence is not capable of constituting fraud “on” the Tribunal. Finally, the applicant’s allegations in respect of his friend did not prevent the applicant from giving evidence and presenting arguments to the Tribunal. The Tribunal in turn was not prevented from reviewing the decision by reference to the evidence and the explanations given by the applicant for the inconsistencies in his accounts. Ultimately, the Tribunal did not accept the applicant’s explanations relating to the “friend” and considered there were other inconsistencies in the applicant’s account suggestive of him changing his evidence when it appeared an adverse inference might be drawn from his earlier testimony.
Did the quality of the interpretation during the review lead to material unfairness?
As noted above, the applicant raised issues regarding the standard of the interpretation of the proceedings. Those issues were not the subject of evidence in an admissible form. I did not grant the applicant an adjournment for the purposes of filing affidavit material relevant to his allegations as even taking the applicant’s assertions at their highest, they did not allege material unfairness in the conduct of the review.
The combined effect of ss 425 and 427(7) of the Act requires the Tribunal to provide a competent interpreter where the applicant is not proficient in English: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [17] and [20], per Kenny J. The function of an interpreter is to remove barriers which may prevent or impede understanding or communication: Perera at [24]. The interpretation need not be at the very highest standard but must be sufficient to express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language: Perera at [29]. The ultimate question is one of the fairness of the hearing and the process: SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142 at [9] and [24], per Allsop CJ. “The question is whether the mistranslation or non-translation, singular or plural as the case may be, individually or in the aggregate, led to a material unfairness, that is, relating to a matter of significance or potential significance for the applicant’s case and what the applicant was putting about the claim or for the decision-maker’s decision”: SZRMQ at [66], per Robertson J.
I understood the applicant to submit that there was an issue in respect of the interpretation relating to a discrete matter, namely whether he had attempted to relocate in Malaysia prior to coming to Australia to seek protection. He told the Court that was the only problem he identified in real time during the hearing, and the misinterpretation was corrected. Once that occurred, the applicant says the Tribunal asked if he wanted another interpreter, but he decided to give them another chance. He told the Court there were no other issues.
The applicant’s allegations in this respect are not capable of establishing the review hearing was unfair due to the standard of interpretation. This conclusion is fortified in circumstances where the Tribunal clearly outlined at [24] the applicant gave evidence that he moved to different places in Malaysia for safety, but the Thai people kept looking for him and followed him from place to place. Clearly, the evidence the applicant identified as being affected by the interpretation issue is recounted in the Tribunal’s decision in a manner consistent with what the applicant says was the actual state of affairs.
Did the Tribunal overlook the applicant’s claim or treat him unfairly when affirming the decision?
The applicant disagreed with the Tribunal’s decision but was unable to identify what the Tribunal had done wrong in making its findings and reaching its conclusions. The Tribunal concluded the applicant was not a credible witness. Consequently, the Tribunal concluded the factual basis for the applicant’s claims for protection was not established.
The merits of the applicant’s application for the visa were for the delegate and the Tribunal: see Liang at 272. Making findings on credibility is the function of the primary decision maker or the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67], per McHugh J. While it has been recognised that adverse credibility findings can involve jurisdictional error, “[t]he flaw in the fact-finding or treatment of the evidence must be sufficiently seriously illogical, irrational or groundless as to compromise the decision, in that the credit finding can be seen as compromised”: SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589 at [40], per Allsop CJ.
The Tribunal’s conclusions as to the applicant’s credibility in this case do not suffer from the vices referred to in SZHYH. They are conclusions that were open to the Tribunal. They are not illogical or groundless. So much is evident from the careful way in which the Tribunal outlined the applicant’s evidence, identified inconsistencies and referred to his manner of giving evidence in reaching its various conclusions. The Tribunal’s reasons demonstrate it engaged in an active consideration and assessment of the evidence before it. No jurisdictional error is evident in the Tribunal’s approach to the factual material before it.
Did the Tribunal err in interpreting the definition of refugee?
The applicant was unable to explain the basis of this allegation in his application. I can discern no basis for concluding the Tribunal misinterpreted the refugee or the complementary protection criteria. The decision sets out in unexceptional terms the criteria set out in s 36(2) of the Act. Ultimately, the Tribunal was not required to consider the criteria further as it did not accept the factual basis for the applicant’s claims.
There is no merit in this allegation.
Are there other legal errors not identified by the applicant?
The applicant was not represented in this Court. I have considered the Tribunal’s decisions and the transcripts of what transpired alert to the possibility of legal error in an effort to make the process as fair as possible to the applicant: MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392 at [100], per Mortimer J (as her Honour then was). I have not identified any jurisdictional error.
CONCLUSION
For the above reasons, I dismiss the application.
In the event the application was dismissed, the Minister sought costs in the fixed sum of $5,000.00 which is below the scale prescribed in Sch 2, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The applicant told the Court he was not “happy” to pay the costs for a mistake he did not do, referring to his friend who completed his visa application and application to this Court. He was not “happy” the person he paid to assist him did not complete the applications properly and he was not given the opportunity to provide new evidence to defend himself. He otherwise had no objection to the costs amount sought by the Minister.
I am satisfied that the costs should follow the event in this matter. The applicant’s arguments as to costs do not justify a departure from the usual course of events. I am also satisfied the amount sought by the Minister is reasonable, representing a significant discount on the scale of costs for migration proceedings concluded at final hearing. Accordingly, I order the applicant pay the Minister’s costs of and incidental to the proceedings in the fixed sum of $5,000.00.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 23 January 2025
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