DEY18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 10
•30 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DEY18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 10
File number(s): MLG 1798 of 2018 Judgment of: JUDGE CORBETT Date of judgment: 30 January 2025 Catchwords: MIGRATION – Protection visa – application for judicial review – whether Tribunal failed to conduct the statutory task – role of the Court - application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss 36(1A)(b), 36(2)(a)-(c), 36(2)(aa), 36(3), 5H(1), 5H(1)(a), 5H(1)(b), 5J, 5J(1)(a) 5J(2)
Migration Regulations 1994 (Cth), Sch 2
Cases cited: Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of last submission/s: 2 December 2024 Date of hearing: 2 December 2024 Place: Melbourne Solicitor for the Applicant Applicant appeared in person Solicitor the Respondents Ms S Roeger, Australian Government Solicitor ORDERS
MLG 1798 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEY18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
30 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.The application for judicial review filed 21 June 2018 be dismissed.
4.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $4,500.00.
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 CORBETT
The applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 18 May 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Class XA Protection (Subclass 866) visa (visa).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R1”.
BACKGROUND
The applicant is a citizen of Malaysia. The applicant first arrived in Australia on 11 October 2016 on a subclass 601 Electronic Travel Authority visa (CB 54).
On 28 November 2016, the applicant applied for the visa (CB 10-49). The applicant claimed that due to ongoing infertility issues, he and his wife were being forced by their families to divorce and that should he return to Malaysia the applicant would be forced to marry another woman (CB 41-3). The applicant claimed that due to the small size of Malaysia, his family would be able to easily find him even if he relocated. He claimed that the Malaysia authorities would not provide protection to him because they do “not interfere in family [matters]” (CB 42-3).
On 20 March 2017, a delegate of the Minister refused to grant the visa on the basis that the applicant was not a person to whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act) (CB 54-60).
On 24 March 2017, the applicant filed an application with the Tribunal to review the delegate’s decision (CB 61-71).
On 2 February 2018, the Tribunal invited the applicant to appear before it at a hearing scheduled for 15 March 2018 to give evidence and present arguments (CB 75-7).
On 11 February 2018, the applicant responded to the hearing invitation and confirmed that he would take part in the hearing. He requested that the Tribunal also take evidence from his wife (CB 78-81).
On 15 March 2018, the applicant and his wife attended the hearing before the Tribunal and was assisted by an interpreter fluent in the English and Malay languages (CB 82). An untranslated copy of a marriage certificate was provided to the Tribunal at the hearing (CB 84-7).
On 18 May 2018, the Tribunal affirmed the delegate’s decision not to grant the visa and provided written reasons to the applicant on 21 May 2018 (Decision) (CB 91-102).
TRIBUNAL DECISION
In the Decision, the Tribunal considered the relevant criteria for the visa in s 36 of the Act and Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). The Tribunal referred to the alternative complimentary protection criteria in ss 36(2)(a), 36(2)(aa), 36(2)(b), or 36(2)(c) and considered whether the applicant was a person to whom Australia has protection obligations (CB 93 [2])
The Tribunal set out the criteria for refugee status, the mandatory considerations under Ministerial direction No 56 and the applicant’s claims for protection (CB 93-6 [7]-[16]). The Tribunal then considered the oral evidence of the applicant and the applicant’s wife given to the Tribunal at the hearing on 15 March 2018 (CB 95-6 [13]-[14]). The Tribunal accepted that the applicant and his wife were credible witnesses and accepted the claims made to the Tribunal on that day (CB 97 [23]).
The Tribunal considered the definitions of a refugee under ss 5H(1)(a) and 5H(1)(b) and the meaning of a “well-founded fear of persecution” in ss 5H(1) and 5J(1)(a) of the Act respectively (CB 93 [4]-[5]). The Tribunal also referred to the circumstances in which a person will be taken not to have a well-founded fear of persecution in ss 5J(2)-(6) of the Act (CB 93 [5]). The Tribunal then considered the circumstances in which the applicant left Malaysia and sought protection in Australia. The Tribunal assessed whether there was a real chance of the applicant experiencing serious harm amounting to persecution, or for any similar reason enumerated in s 5J(1) of the Act, if he returns to Malaysia (CB 97 [25]). The Tribunal did not accept the applicant’s claims to amount to ‘serious harm’ for the purpose of s 5J of the Act (CB 97 [24]-[26]).
In the Decision, the Tribunal referred to evidence of the applicant that indicated that he and his wife did not have a current right to enter and reside in another country other than their receiving country, Malaysia. The Tribunal concluded that the applicant would not be able to receive protection in another country therefore s 36(3) of the Act would not apply (CB 96 [21]).
The Tribunal then considered the complementary protection criteria in s 36(2)(aa) of the Act. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk that the applicant and his wife will suffer significant harm (CB 98-9 [33]-[36])
The Tribunal concluded that the applicant does not meet the refugee criterion in s 36(2)(a) or the alternative complementary protection criterion in s 36(2)(aa) of the Act and affirmed the decision not to grant the applicant the visa (CB 99 [37]-[40]).
PROCEEDINGS IN THIS COURT
On 21 June 2018, the applicant filed an application for judicial review in this Court under s 476 of the Act citing six grounds of review. The application for judicial review was accompanied by an affidavit affirmed by the applicant on 20 June 2018 (CB 1-9).
The six grounds of review were as follows (verbatim) (CB 4):
(1)I was a holder of visitor visa and applied for protection visa. My visa was refused and then application lodged for review. I would like to make an application to FCC to replace old orders made by DIBP and AAT.
(2)I believe AAT has made an administrative error while deciding my application and misinterpret it.
(3)I have a genuine fear for life once returned to Malaysia related to the matter I have outlined in my application form and provided information to the AAT.
(4)I am a genuine applicant for refugee visa and require protection to keep myself safe from people who would harm me once I go back to Malaysia.
(5)Further affidavits from my family and friends who were aware of my situation will be submitted to the FCC to favor my application.
(6)I would like to request to FCC to set aside old orders and replace by new orders and accept my application for reviews as a valid application and decide this matter at FCC.
On 2 October 2019, a Registrar of this Court made orders for the applicant to file and serve any amended application with proper particulars, a supplementary Court Book and written submissions at least 28 days before the final hearing date.
The hearing of the application for judicial review was listed before this Court at Melbourne on 2 December 2024. The applicant did not file or serve any documents or materials as ordered on 2 October 2019 and appeared self-represented. The applicant was assisted by an interpreter who appeared via telephone and was fluent in the English and Malay languages.
Ms Roeger, solicitor, appeared on behalf of the Minister.
The Court confirmed that the applicant had received the Court Book and the outline of written submissions filed on 18 November 2024 on behalf of the Minister.
APPLICANT’S SUBMISSIONS
Noting that the applicant was unrepresented, the Court explained that this Court cannot review the merits of the Tribunal’s decision to grant the visa. Rather, the role of the Court is restricted to determining if the Tribunal made a jurisdictional error in arriving at the Decision (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang)). The Court explained that it could not grant the applicant a visa but could send the application back to the Tribunal for reconsideration if there was a significant legal or factual error that meant the Tribunal acted contrary to law.
The Court gave the applicant an opportunity to elaborate on, and further articulate, the grounds of review and to inform the Court of the basis on which the Tribunal fell into jurisdictional error.
The applicant recited a prepared speech that was translated to the Court by the interpreter. The applicant submitted that he had already provided evidence to the Tribunal and did not want to go into further details due to the stress and depression that may be suffered by his wife. It was submitted that the applicant had spent several hours providing evidence to the Tribunal as to why he could not return to Malaysia and feels the Tribunal has not considered all of the evidence and provided proper reasons for the Decision.
The Court asked the applicant what would happen to him if he returned to Malaysia. The applicant replied that he has been degraded and “kicked out” by his own family and did not believe his family would accept him again.
The applicant was unable to otherwise assist the Court on the merits of his application for judicial review and submitting nothing further to support the application for judicial review.
MINISTER’S SUBMISSIONS
On behalf of the Minister, Ms Roeger sought to rely upon the outline of submissions filed on 18 November 2024.
In relation to ground one of the application for judicial review, the Minister submitted that the ground did not identify any legal mistake made by the Tribunal, rather the ground articulates the applicant’s procedural history with the Tribunal and subsequent application for judicial review with this Court. The Minister submitted that this ground should be dismissed.
In relation to ground two, the Minister submitted that the applicant’s claim that the Tribunal made an administrative error should be dismissed as it does not particularise what the error is claimed to be.
In response to the applicant’s oral submissions of error by the Tribunal, Ms Roeger for the Minister had two submissions. The first submission was that the Tribunal followed the “correct law” in finding that the applicant did not meet the refugee criterion in s 36(2)(a) or the alternative criterion in s 36(2)(aa) of the Act. The second submission was that the assertion by the applicant that the hearing went for several hours, indicates that the applicant was given a fair opportunity by the Tribunal to present his evidence and arguments (CB 95-6 [13]-[14]). The Minister submitted that this was reflected in the consideration and findings of the Decision (CB 97 [22]-[28]). The Tribunal accepted the applicant’s evidence as truthful and credible.
Therefore, the applicant’s second ground of review, as supplemented by the applicant’s oral submissions did not identify any basis that the Tribunal misunderstood or “misinterpreted” the evidence and thereby fell into error.
In relation to grounds three and four, the Minister submitted that both grounds should be dismissed as they raise impermissible merits review by the Court. The Minister submitted that the applicant misunderstands the Court’s task to determine whether the Tribunal made a legal mistake in the Decision, not the merits of the applicant’s original application for the visa.
In relation to the fifth ground of review which refers to the applicant’s willingness to file further affidavits of his family and friends as evidence of his claims. The Minister submitted that the applicant has not filed any further affidavits, and even if so, there is no indication that the affidavits would demonstrate that the Tribunal made a jurisdictional error. The ground should be dismissed.
In relation to ground six, the Minister submitted that this ground be dismissed as it does not identify a mistake made by the Tribunal and was simply a narrative of the relief sought. It was submitted that the application for judicial review should be dismissed with costs.
CONSIDERATION
The function of this Court is to review the Decision and determine if the Tribunal has fallen into error by failing to conduct the statutory task of determining the application for the visa in accordance with law.
In Wu Shan Liang the High Court said at 272:
In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
Therefore, it is not for this Court to review the merits of the Decision or to reconsider the weight given by the Tribunal to the evidence produced before it at the hearing. The weight to be given to the evidence was in the domain of the Tribunal and not by a judge conducting judicial review (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per Nicholson J).
In this case, the task of the Tribunal was to assess whether the applicant was entitled to protection under s 36 of the Act. The criteria to be applied by the Tribunal as decision-maker are identified in the Act and Regulations. Not every claim for protection will satisfy those criteria. The Tribunal considered all of the applicant’s claims and did so after considering the applicant’s evidence of his fear of persecution or harm should he return to his home country. The applicant did not satisfy the necessary criteria and therefore the application for the visa was refused.
Each of the grounds of review in the application for judicial review filed with this Court lack proper particulars and do not identify jurisdictional error. In relation to migration decisions, jurisdictional errors commonly include, but are not limited to, the following:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (see Craig v State of South Australia (1995) 184 CLR 163 at 198):
(b)where the decision-maker ignores relevant material:
(c)where the decision-maker relies on irrelevant material:
(d)where the decision-maker fails to follow mandatory procedures:
(e)where the decision-maker shows actual or apprehended bias:
(f)where the decision is or illogical irrational or unreasonable (see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]).
The grounds of review identified by the applicant do not fall within any of these categories. The first ground is simply a narrative of the relief sought. The second ground merely identifies a belief as to error but does not identify any actual error or why that error was a jurisdictional error of the kind identified above. The third and fourth grounds repeat claims made by the applicant to the delegate and the Tribunal as to the merits of his claims for protection. Those claims were rejected by the relevant decision-makers and there is no allegation that the Tribunal identified the wrong issue to be determined. The applicant did not identify any relevant fact or issue that the Tribunal failed to consider or the consideration of irrelevant material. At best his submission was that this Court should reconsider the merits of the application. That is not the function of this Court.
Ground five is a narrative reserving the right to present further evidence to the Court. The applicant did not do so and if there was compelling evidence available to the applicant to assist him in his application for the visa, then that evidence should have been provided to the Tribunal.
Ground six simply articulates the relief sought by the applicant however that relief can only be granted if the Tribunal erred in reaching the conclusions reached in the Decision.
The Court has also scrutinised the application for judicial review, the materials before the Tribunal and the Decision to identify any jurisdictional error, noting the Court’s obligations as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], [100], [112], [113] and [114]. No error is apparent. The application for judicial review must be dismissed with costs.
OTHER MATTERS
At the conclusion of submissions, the Minister sought to amend the name of the first respondent to “Minister for Immigration and Multicultural Affairs”.
Further, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.
The Minister also seeks costs of and incidental to the proceeding fixed in the sum of $4,500.00 which is less than the scale amount provided for in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth). The sum claimed is reasonable and appropriate in the circumstances of this case. Costs will follow the event.
ORDERS
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.The application for judicial review filed on 21 June 2018 be dismissed.
4.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $4,500.00.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 30 January 2025
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