DIN24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 181
•20 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DIN24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 181
File number(s): PEG 191 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 20 January 2025 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – applicant self-represented – whether a denial of procedural fairness – whether the applicant made a claim relating to her mental health – whether the Tribunal had any duty to inquire – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5H, 36(2)(a)
Migration Regulations 1994
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021
Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14
EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 105
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 20 January 2025 Place: Perth Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr Coten Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: The Australian Government Solicitor ORDERS
PEG 191 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DIN24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
20 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The name of the Second Respondent be amended to read “Administrative Review Tribunal”.
3.The Application filed on 4 June 2024 is dismissed.
4.The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
The applicant is a citizen of China. She grew up in China and met and married her first husband there, and had her son there in 1999. In 2003, the family unit moved to Hong Kong.
The applicant's first marriage was a violent and unhappy one. Her first husband was imprisoned for approximately nine or 10 years from 2003. After he was released from prison, the applicant's first husband found her and demanded that she give him money to start a business. The applicant told him she did not have any money to give him, and they argued. He started to beat her, slapping her in the face, hitting her and pushing her. This all occurred in the presence of the applicant's mother, her sister-in-law and her niece at their home in Shenzhen. He picked up a knife and threatened her and her family with it, continuing to demand money. He was behaving erratically. The incident only ended when the applicant's father came home, kneeled down and begged him to leave.
The applicant divorced her first husband in September 2013, but he kept coming back to her, demanding money from her. In early 2014, the applicant and her first husband agreed to sell the former matrimonial home in Shenzhen. The applicant's first husband took the majority of the proceeds of the sale, and this was the last time that the applicant personally dealt with her first husband. He has not contacted her since that time, but the applicant is aware that he still lives in Hong Kong. He has visited her brother and he has spoken with her mother. He has asked after her and he has also kept in touch with their son.
The applicant enjoys travelling. In 2013 and 2014, she travelled on holidays to Japan, Thailand and Malaysia, as well as Turkey and Jordan. She first arrived in Australia on 12 April 2015 on a tourist visa. She came with a friend. After two months, her friend returned to Hong Kong. The applicant stayed in Australia, having met someone new and starting a relationship with them. On 8 July 2015, the applicant and her new partner were married. On 10 July 2015, the applicant applied for a partner visa. On 28 December 2016, the applicant left her second husband and went to a women's refuge, alleging family violence. On 3 March 2017, the applicant's application for a partner visa was refused.
On 9 June 2017, the applicant lodged an application for a protection visa. The applicant provided a detailed personal statement in support of the visa application, in which she expressed disappointment that her marriage was not accepted in the partner visa application and that that application was refused. She also said that she could not return to Hong Kong, which can be summarised as a claim that there would be a nightmare waiting for her, that her first ex-husband would harass her, including demanding money from her, as he had done previously. On 26 March 2018, the delegate refused the applicant's visa application.
On 8 April 2018, the applicant applied to the Administrative Appeals Tribunal for a review of the delegate's decision. A Tribunal hearing took place on 3 May 2024. The applicant attended in person at the hearing and had the assistance of an interpreter in the Mandarin language. On 8 May 2024, the Tribunal affirmed the delegate's decision to not grant the applicant a protection visa. The Tribunal set out an overview and outline of the evidence, in the Tribunal's words, as told to it by the applicant at the hearing and as included on her application paperwork.
The Tribunal found that the applicant presented as a credible and earnest in her attempts to recall and recount information, much of which related to historical or traumatic events in her life. The Tribunal said, "I accept all of the below matters," and went into a detailed recitation of the facts. That included the applicant's personal background, her first marriage, her life situation, her travel to Australia and back to China, the circumstances surrounding her marriage to her second husband, and the partner visa application that was refused. The Tribunal correctly summarised the applicant's claims, centring on her fear that she cannot return to Hong Kong because of her first husband and that he will harass her to give him money, as he has done in the past, which occurred before they were separated and also after they were separated.
On 4 June 2024, the applicant applied for judicial review of the Tribunal's decision, and there are five grounds of review pleaded. These are as set out:
1.I explained in the AAT court why I was persecuted and why I was afraid to return to Hong Kong to seek further time, I suggested that submissions would be sent to the Tribunal within a reasonable period, but the Tribunal did not allow me enough time for this after the hearing. This is not fair and is against the legal process.
2.The court ignored the fact that I suffer from depression. I claimed that I suffer from depression, but the court did not ask me to provide further evidence. I have been facing the possibility of abuse, harassment and beating by my first husband if I return to Hong Kong, and divorce in Australia due to abuse by my second husband, which directly led to my mental and emotional health problems.
3.The officer mistakenly believed that the applicant’s life would not be in danger or serious harm would occur upon his return to the country. However, the case officer failed to investigate the applicant’s claim by misconstruing the details as set out in s 36(2)(a), s36(2C), s36(3), s5H(1) of the Act and Schedule 2 to the Migration Regulations 1994.
4.I seek for my claim to be given a second chance for me to provide more details to straighter my claims but not just to concern.
5.After staying Australia for more than 9 years, I love it so much. And I have indirectly made contributions to this country. I hope I could stay here, Australia is already my second home.
In general terms, the applicant has the onus to establish jurisdictional error. As I explained to the applicant, the court does not have jurisdiction to determine the merits of the applicant's visa application, to re-hear that matter, or grant the applicant a visa. The court's jurisdiction is confined to determining whether the Tribunal made jurisdictional error when it determined the visa application as a review of the delegate's decision.
For reasons that I will set out, I do not find that any of the grounds of review have been made out, or that the Tribunal otherwise made jurisdictional error in determining the applicant's case, and in those circumstances, I will dismiss the application.
Ground 1
Ground 1, in essence, is one of procedural fairness. The applicant alleges that she suggested that submissions could be sent to the Tribunal within a reasonable period, but the Tribunal did not allow her enough time for this after the hearing. The applicant asserted that this is not fair and is against the legal process.
The difficulty for the applicant with this ground of review is that the Tribunal asked the applicant at the end of the hearing if she wanted the opportunity to provide the Tribunal with any further information in writing, and she declined this offer. In this portion of the reasons, the Tribunal re-stated that it accepted the evidence given by the applicant at the hearing.
I do not see any error made out in ground 1 in the circumstances.
Ground 2
Ground 2 goes to error by the Tribunal in failing to consider a claim relating to the applicant's mental health. It is also said that the Tribunal did not ask the applicant for further evidence. At the hearing today, where the applicant appeared on her own behalf, she said that she told the Tribunal that she suffered from domestic violence and that that affected her mental health, and that the domestic violence in Australia had been established in a court.
The claim that was made by the applicant in the statement in the visa application went to the domestic violence she had suffered by her first husband, but in relation to the applicant's marriage to her second husband, the Tribunal included in findings that it accepted that the applicant left her second husband on 28 December 2016 and went to a women's refuge, and that she had suffered from sustained family violence perpetrated by him. The Tribunal went on to say:
The applicant insists that her marriage to Benjamin was genuine, despite the domestic violence which had occurred.
There is some detailed consideration throughout the Tribunal's reasons about the applicant's anguish and dissatisfaction in respect of the way in which her partner application was determined, and that remained the case today in the hearing before me, where the applicant went to speak about that to some extent. As I explained to her, however, I have no jurisdiction with respect to the partner visa.
However, to the extent that ground 2 goes to domestic violence in Australia, the Tribunal considered and accepted that the applicant had been a victim of domestic violence by her second husband. In general terms, the Tribunal is required to consider all claims that are made by an applicant, including those that are expressly made and those that arise squarely on the materials before it.[1]
[1] Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802.
In this case, the applicant did not expressly make a claim that she had mental health issues or suffered from depression. I accept that the claim of mental anguish was present in the personal statement accompanying the applicant's application for a visa, where it is said:
During this time, I applied for Partner Visa, I got help from women’s refuge because I was suffering violence from him. The help from women’s refuge made me feel warm. I knew that Australia is a place took human right important. Australia took care of women and children. After suffered a lot, that was the only comfort I had. Unfortunately, my visa application was refused on 3rd March 2017 and I had to leave before the date made. I felt desperate, because after I went back to my home, my ex-husband would not leave me alone. He would harass me all the time, no matter I would stay at my home town or stay at Hong Kong. I feel desperate, and I even thought about suicide. I can’t stay at Australia, and if I go back home, there will be a nightmare waiting for me. I did not know what is the reason for me to still live in this world.
That paragraph of the statement references a period of time in 2015 and 2017 and goes to the impact on the applicant's mental health, that her first husband had. To the extent that it speaks about the applicant's current mental health, she did not provide any evidence to support the claim, and the Tribunal accepted the evidence given by the applicant at the hearing.
In relation to the impact on her that the applicant's first husband would have, the Tribunal accepted that his conduct would involve intentional acts and that there was a real risk that he will deliberately approach the applicant and ask her to give him money. The Tribunal considered that this type of conduct would be vexatious to the applicant and it would cause her to experience frustration, annoyance and a form of mental anguish. The Tribunal went on to say:
To be clear, however, I do not find the ex-husband’s conduct would involve any physical pain or suffering being inflicted on the applicant – certainly, the applicant has not made such a claim and did not assert as much at the hearing.
The Tribunal also found that if the applicant returns to Hong Kong, she will have the emotional and moral support of her immediate family network. The Tribunal again reiterated the finding that, although her ex-husband's conduct, either as a one-off or on a repeated basis, will likely cause the applicant mental anguish and annoyance, it will not reach the threshold of significant harm within the meaning that is prescribed to that term in the Migration Act 1958.
I do not find that there was any error by the Tribunal in the way that the question of the applicant's mental anguish was considered and determined in this context. I also consider that there was no obligation on the Tribunal to ask the applicant to provide any further evidence. The Tribunal had accepted her claims as credible. However, as I found in my consideration of ground 1, the Tribunal provided the applicant with an opportunity to provide further materials and she declined to accept it.
I do not find any error in ground 2.
Ground 3
Ground 3, which I clarified with the applicant on that the references to case officer and officer a reference to the Tribunal firstly mistakenly believing that her life would not be in danger, and secondly failing to investigate her claims.
The applicant's responsibility was to advance arguments and evidence in support of her claims, and the Tribunal has no general duty to inquire. In Abebe v Commonwealth of Australia, Gummow and Hayne JJ said:
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.[2]
[2] [1999] HCA 14 at [187].
The relevant legal principles were set out by Judge Forbes in EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs[3] as follows:
[3] [2024] FedCFamC2G 105.
[51] The Tribunal operates in an inquisitorial, rather than adversarial, fashion and it has the power in conducting a review to get any information which it considers relevant. It may invite a person to provide information. It is to have regard to any information so obtained in making its decision.
[52] However, the Tribunal is under no general duty to use, or to consider using, its investigative powers to obtain information relevant to the review. Although the Act confers on the Tribunal wide discretionary powers to investigate an applicant’s claims, the legislation does not impose on the Tribunal a general duty to make inquiries in addition to the information provided to it by the applicant.
[53] It is well-established that a decision-maker has no duty to make his or her own inquiries in order to make out an applicant’s case .
[54] However, in Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 at [60] , Kenny J observed (citations omitted):
[…] On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her. These authorities stretch back over the life of the Tribunal[…] On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal’s failure to inquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 .
[55] The circumstances in which a Tribunal decision will be set aside on the grounds of a failure to inquire are “ a confined category of case ”.
[56] As to the circumstances where a failure to inquire might give rise to jurisdictional error, the High Court held in Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 ( SZIAI ) at [25] that:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a duty to inquire, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction . It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case[…]” (emphasis added)
[57] Further, in SZIAI Heydon J observed at [52]:
The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve.
(citations omitted)
It is clear from these authorities that the circumstances in which a Tribunal decision will be set aside on the grounds of a failure to inquire are confined. Whilst it may be that failure to make obvious inquiries about a critical fact can in some circumstances be sufficiently linked to an outcome to constitute a failure to conduct a review, and that may give rise to jurisdictional error, I consider in this case there was no obvious matter apparent.
I also consider that an analysis of the Tribunal's reasons shows that the manner in which the Tribunal questioned the applicant at the hearing was constructive. It was targeted questioning, made openly, designed to elicit from the applicant the most complete evidence about the crux of her claims. I do not consider there to be any error in the way in which the Tribunal conducted the review in that regard. It was pointed out to me and I take note of the fact that the Tribunal hearing went for three hours, an, it was conducted in a fashion that elicited the whole account from the applicant.
Ground 3 also makes reference to a number of provisions of the Act and the Migration Regulations 1994. I sought to clarify with the applicant what those references meant and she was not able to advance them any further than what is written in the application. There is a suggestion that her migration agent might have included them, but she was not sure precisely why. In any event, I agree that the references to sections 36(2)(a) and section 5H are the subject of a detailed analysis by the Tribunal in its reasons. The other provisions do not appear to me to be relevant to the matters that were the subject of the review, and I do not consider that the Tribunal made any errors or mistakes or misapplications of the law in setting out or applying the provisions that are referred to.
Ground 4
Ground 4 effectively asks for a second chance to provide more details to the claim. The court can only quash the Tribunal's decision if jurisdictional error is established. I have not been able to find jurisdictional error in any of the grounds that have been alleged or in the Tribunal's reasons more broadly, so I cannot analyse ground 4 any further.
Ground 4 is dismissed.
Ground 5
Ground 5 is a statement. It is not a proper ground of review, because it is a statement that the applicant makes having been in Australia for nine years, that she loves it so much and the contributions that she has made to the country as her second home.
Whether that is so or not, it is not something that invokes any jurisdiction of the court and it is not a ground of review that is directed towards the Tribunal's reasoning.
I do not consider that jurisdictional error has been established in ground 5,
As I have not found any ground of review made out, I will dismiss the application.
The Minister applied for costs fixed in the sum of $5,400. The applicant submitted that she does not have the financial resources to pay a costs order, and asked about how she could make payment of the sum. It was explained to the applicant that questions about capacity to satisfy a costs order are different to whether a costs order should be made.
The applicant made no further submissions about costs. As the application is dismissed, I will order the applicant pay the Minister’s costs fixed in the sum of $5,400, which I note is within the amount specified in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 14 January 2025
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