DFT18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 63

Federal Circuit and Family Court of Australia

(DIVISION 2)

DFT18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 63

File number(s):	SYG 1740 of 2018
Judgment of:	JUDGE LAING
Date of judgment:	8 February 2023
Catchwords:	MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant Protection (Class XA) (subclass 866) visas – whether the Tribunal denied the applicants procedural fairness – whether the Tribunal was obligated to notify the applicants before a decision was made and to allow a further hearing to occur – limitations of the Court’s role on judicial review – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 424A, 425
Cases cited:	SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
Division:	Division 2 General Federal Law
Number of paragraphs:	45
Date of hearing:	1 February 2023
Place:	Sydney
Solicitor for the First Applicant	The first applicant appeared in person with the assistance of a Mandarin interpreter
Solicitor for the Second Applicant	No appearance by the second applicant
Solicitor for the First Respondent	Ms A. Meaney (Mills Oakley) appeared by video-link

ORDERS

SYG 1740 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DFT18

First Applicant

DFU18

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	8 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The application 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 LAING

INTRODUCTION

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Protection (Class XA) (Subclass 866) visas (protection visas).

   background

2. The applicants are citizens of Malaysia. The first applicant (Applicant) applied for a protection visa in September 2016 together with her husband, the second applicant.

3. On 24 March 2017, the Delegate refused the application.

4. On 12 April 2017, the applicants applied to the Tribunal for review of the Delegate’s decision. The Applicant attended hearings before the Tribunal on 14 September 2017 and 30 October 2017.

5. On 4 June 2018, the Tribunal affirmed the Delegate’s decision.

   the tribunal’s decision

6. The Tribunal identified a number of issues with the credibility of the applicants’ claims and evidence.

7. The Tribunal observed that the applicants had claimed that they had both been in Malaysia running businesses and having difficulty with gangsters and the police until 2016. This was inconsistent with the Department’s records, which showed that the second applicant had arrived in Australia in June 2014. The Tribunal did not accept that the Applicant’s claim of having a poor memory explained why she had claimed that her husband had engaged in activities and been involved in incidents in Malaysia over a period when he was not there. These issues in the evidence were found to undermine the credibility of the applicants’ claims (at [34]-[40] and [46]).

8. The Tribunal considered that the Applicant had provided other contradictory evidence regarding the family’s circumstances and had been evasive about her situation before leaving Malaysia. The Tribunal found that the Applicant had given inconsistent evidence about her contacts in Australia and whether she was in contact with her family in Malaysia.  It also found that she had given inconsistent and otherwise problematic evidence regarding her family residence in Malaysia (at [41]-[45]).

9. The Tribunal considered that there had been a number of inconsistencies and omissions in the Applicant’s evidence about her claimed jewellery shop business. These were found to undermine the applicants’ claims that they had difficulties with competitors, gangsters, protection money or the police on account of that business. The Tribunal observed that the Applicant had given inconsistent evidence regarding her role in and/or ownership of the jewellery store, the dates she claimed to have opened and closed the jewellery store, the reasons the jewellery store had closed and the group of people she claimed had demanded protection money. The Applicant had also given inconsistent evidence regarding the response of the police (at [47]-[53]).

10. The Tribunal considered that there were significant problems with the Applicant’s evidence about the family’s beauty shop. The Applicant had given inconsistent evidence as to when the shop was opened, as well as regarding the length of time between the opening and when protection money had been demanded. The Applicant also gave inconsistent evidence as to whether the family paid protection money in June 2014, what the police did, and what other men claimed to have been harassing the family had done. Significant aspects of the Applicant’s written claims were not mentioned at the Tribunal hearing by the Applicant without prompting.  These included claims of the police demanding money, the police saying that they would let the gangsters kill them when they would not pay, and of gangsters subsequently destroying everything in the shop, pouring red paint on the doors and assaulting the family (at [54]-[65]).  

11. The Tribunal observed that the Applicant had submitted that her mental health and/or memory issues had contributed to difficulties with her evidence. This was not accepted by the Tribunal. The Tribunal found the Applicant’s evidence to have been additionally problematic in this regard. On the limited evidence before it, the Tribunal was not satisfied that the issues it had identified in the Applicant’s evidence were explained by issues with her memory or mental health (at [31]-[33] and [70]).

12. On the basis of the above, the Tribunal found that the Applicant was not a reliable witness and did not accept her claims, including those she had made on her husband’s behalf, to have suffered harm in the past or to fear harm from gangsters or anyone else in the future (at [71]).

13. The Tribunal was willing to give the applicants the benefit of the doubt in respect of certain factual claims. The Tribunal accepted that the family lived with the second applicant’s mother and their children in an apartment owned by a member of the family. The Tribunal accepted that the applicants were trained in jewellery making and design and had worked for years in the jewellery industry. The Tribunal accepted that the Applicant later worked casually as a beautician from her home and that the second applicant had operated a roadside stand for some period before leaving Malaysia in 2014 (at [72]). 

14. However the Tribunal rejected the balance of the applicants’ claims on the basis of its adverse credibility findings (at [73]). The Tribunal did not accept that the family had owned a jewellery or beauty store, or any of the claims of harm that flowed from those claims (at [74]-[76]).

15. The Tribunal did not accept that the Applicant had suffered previous harm including stress because of the family’s economic circumstances in Malaysia, or that the family had debts. Having regard to country information and the applicants’ employment history, the Tribunal found that the applicants would be able to find employment and support the family in the future.  On the evidence, the Tribunal was not satisfied that the family would suffer economic harm in the future (at [77]-[83]).

16. Having regard to country information and the limitations in the evidence, the Tribunal found that any fears the Applicant had of Malays on the basis of her Chinese ethnicity were unfounded (at [84]-[86]). The Tribunal considered that if the Applicant did suffer violence or intimidation from any Malay, then this would be no more than a random or opportune criminal act (at [86]).

17. Based upon the above, the Tribunal concluded that the applicants were not persons to whom protection obligations were owed under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act). Accordingly, the Tribunal affirmed the Delegate’s decision (at [87]-[102]).

    proceedings before this court

18. By an application filed on 21 June 2018, the applicants raised the following grounds of judicial review:

    1.The AAT didn't treat me fairly and didn't give me another chance.

    2. The AAT said it will notify me and let me prepare for another interview. But AAT didn't notify me before making a decision.

    3. AAT asked me for medical evidence and report to prove that I am on long term medication. But it is impossible for me to get the evidence as the doctor is in Malaysia and I need to get the report in person due to the privacy reasons.

    4. AAT is not right to refuse my application for the reasons that I can't give medical evidence.

    Ground 1

19. By ground 1, the applicants contended that the Tribunal did not treat them “fairly” or give them “another chance”.

20. The ground as pleaded was unparticularised. The applicants did not say how the Tribunal was contended to have treated them unfairly, what further chance they contended that the Tribunal was obliged to have given them, nor how the Tribunal’s failure to do so gave rise to a basis upon which this Court would be empowered to set aside the Tribunal’s decision.

21. The Tribunal’s procedural fairness obligations were limited under Part 7 of the Act. The applicants were invited to a hearing in accordance with s 425 of the Act, which was attended by the Applicant. It is apparent from the Tribunal’s decision record that the Tribunal put to the Applicant various concerns that it had with her evidence and gave her the opportunity to respond. Those responses were then considered. From this, the Applicant was on notice that the credibility of her claims was in issue. She appears to have been given a meaningful opportunity to give evidence and present arguments regarding the dispositive issues on the review.

22. The Tribunal invited the applicants, pursuant to the procedure in s 424A of the Act, to comment upon information that was before it indicating that the second applicant had been in Australia since 2014. Even if, as the Minister submitted, s 424A was not relevantly enlivened by this material, the taking of this approach by the Tribunal did not result in relevant error: see SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30]. It is not apparent that there was any other information before the Tribunal that was arguably capable of enlivening the Tribunal’s obligations under s 424A.

23. To the extent that the applicants contended that the Tribunal ought to have given them a further chance to attend a hearing before it, there is no general obligation upon the Tribunal to invite applicants to multiple hearings. Other than the matters raised under ground 2, which will be dealt with under that ground, the applicants have not explained why the Tribunal could be said to have relevantly erred in not inviting them to a further hearing. 

24. To the extent that the applicants contended that the other chance the Tribunal should have given them was through finding that they met the criteria for the visa, this goes no further than disagreement with the Tribunal’s decision. Disagreement alone is not a basis for setting aside the Tribunal’s decision on judicial review.

25. For these reasons, ground 1 is unable to succeed.

    Ground 2

26. By ground 2, the applicants contended that the Tribunal said that it would “notify” them and allow them to “prepare for another interview”, but did not do so prior to coming to its decision.

27. The fundamental difficulty with this ground, as was raised in the Minister’s written submissions and discussed with the Applicant at hearing, is that there is no evidence to support it. There is no transcript, for example, of the hearing before the Tribunal. The Tribunal’s decision record does not indicate that any such undertaking was given. There is no general obligation upon the Tribunal to notify an applicant before a decision is made, or to allow an additional hearing to occur.

28. The applicants were also forewarned of the following in the invitation to comment that was sent to them by the Tribunal after the hearing:

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

29. In circumstances where the applicants did not respond, either within the period allowed or by the time of the Tribunal’s decision several months later, it is difficult to see how the approach taken by the Tribunal could be said to have been so unreasonable as to have been capable of establishing jurisdictional error. 

30. For these reasons, ground 2 is unable to succeed.  

    Ground 3

31. Ground 3 contended that the Tribunal asked the Applicant for medical evidence that was “impossible … to get” as her doctor was in Malaysia and it needed to be obtained in person for “privacy reasons”.

32. The applicants have not explained how this contention was said to have resulted in any type of error on the part of the Tribunal capable of warranting the intervention of this Court. 

33. There is no evidence that the Applicant told the Tribunal that she was unable to obtain medical evidence of her mental health claims. The Tribunal’s decision record, at [27], indicates that the Applicant informed the Tribunal that “she had medical reports that showed she ha[d] the psychological conditions claimed” and was provided with some time to submit this medical evidence. No further material in this regard appears to have been provided to the Tribunal. Nor does any explanation appear to have been provided to the Tribunal as to why this material could not be produced.

34. In the circumstances, I accept the Minister’s submission that it was open to the Tribunal to find as it did at [31] that it would have been reasonable for the Applicant to have “provided something more than her mere assertions about her claimed conditions” such as the medical records she had told the Tribunal were in Malaysia, or evidence from an Australian health professional.

35. The applicants have not demonstrated how or why this reasoning could be said to have been closed to the Tribunal. Nor is any basis apparent on my review of the materials.

36. Ground 3 is therefore unable to succeed.

    Ground 4

37. Ground 4 contended that the Tribunal was “not right to refuse” the application “for the reasons that [the Applicant] can’t give medical evidence”.

38. The Tribunal did not affirm the Delegate’s decision on this basis alone. As summarised earlier, the Tribunal gave detailed reasons for its adverse credibility findings. Those reasons centred around various inconsistencies and other difficulties in the Applicant’s evidence.

39. The Tribunal did not accept that the Applicant’s mental health condition explained those difficulties in the evidence. In coming to this conclusion, the Tribunal expressed concern that although the Applicant claimed that she was hospitalised over three years and could not work, she had also claimed that her mental health issues began two years prior to the hearing, that she had run two businesses and she had not claimed to have been unemployed at any point after 1998 (at [32]). These and other difficulties in the Applicant’s evidence, together with the lack of corroborating evidence, led the Tribunal not to accept the Applicant’s claims regarding her mental health (at [31]-[33]).

40. The applicants have not demonstrated how this reasoning could be said to have been closed to the Tribunal. In essence, this ground and what was submitted at the hearing appeared to be directed towards disagreement with the merits of the Tribunal’s decision. As I have explained, that is not an available basis upon which this Court can set aside the Tribunal’s decision.

    Matters raised at the hearing

41. At the hearing, the Applicant submitted that she had done what she could to obtain evidence such as the medical report or evidence from the police in Malaysia, but had been unable to provide this to the Court. She said that she had faced discrimination and financial difficulties in Malaysia. She said that she had not been able to see her children for several years whilst in Australia and that she had been under a great deal of stress and taking long-term medication. The Applicant expressed that she had also wanted to improve the living standards of her children.  

42. I am not unsympathetic to those submissions. The Applicant’s care for her family, and distress at being separated from her children, was evident during the hearing.

43. However, as I explained during the hearing, the Court’s powers on judicial review are limited. The Court has no power to revisit the merits of the Tribunal’s decision, based upon new evidence, or to assess whether or not the applicants should be granted visas. The Court’s powers are limited to assessing whether the Tribunal’s decision was legally open to it, on the material that was before it. As I have not identified any basis for finding that it was not, I am unable to provide the Applicant with the relief that she seeks.  

    conclusion

44. For these reasons, the application before this Court must be dismissed.

45. I will hear the parties in relation to costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Laing.

Associate:

Dated: 8 February 2023