DJC17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 914
Federal Circuit and Family Court of Australia
(DIVISION 2)
DJC17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 914
File number(s): SYG 2358 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 4 November 2022 Catchwords: MIGRATION – protection visa application – application for judicial review – decision of the Administrative Appeals Tribunal – whether jurisdictional error – whether Tribunal failed to consider evidence of the claimed harm from brother or uncle with whom the First Applicant had an extra-marital affair – whether the Tribunal’s findings about this harm were reasonably open – whether Tribunal failed to afford procedural fairness – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 36(2), 36(2A), 348, 349, 476 Cases cited: Abebe v the Commonwealth of Australia [1999] HCA 14
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of hearing: 13 September 2022 Place: Hobart For the First Applicant: In person For the Second Applicant: In person Counsel for the First Respondent: Mr Taylor Solicitor for the First Respondent: Mills Oakley ORDERS
SYG 2358 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DJC17
First Applicant
DJB17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
4 November 2022
THE COURT ORDERS THAT:
1.The application filed 26 July 2017 is dismissed.
2.The application for costs by the First Respondent is listed for determination on 10 November 2022 at 2:15pm, unless the parties reach agreement as to the terms of any costs order to be made by the Court.
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 Taglieri
These proceedings concern an application for judicial review filed on 26 July 2017 pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”). The Applicants seek judicial review of a decision by the Administrative Appeals Tribunal (“the Tribunal”), regarding the First Respondent’s refusal to grant Protection (Subclass 866) visas to the Applicants.
background facts
The First Applicant is a citizen of Malaysia who arrived in Australia on 2 October 2016. The Second Applicant is the First Applicant’s wife and she relies on the First Applicant’s claims for protection for the purposes of the visa sought.
The claims for protection were initially considered by a delegate of the First Respondent, who on 9 February 2017 refused to grant Protection visas to the Applicants.
On 17 February 2017, the Applicants applied to the Tribunal for a merits review of the delegate’s decision. For the purposes of the review before the Tribunal, the Applicants were invited to attend a hearing by letter of 8 May 2017 and subsequently participated in a hearing on 5 June 2017.
On 28 June 2017, the Tribunal affirmed the delegate’s decision to refuse to grant Protection visas to the Applicants and provided written reasons (“the written reasons”).
The application for judicial review to this Court was heard on 13 September 2022. The Applicants appeared in person by Microsoft Teams for the hearing and were assisted by a Tamil interpreter as had been requested. The First Respondent was represented by legal counsel.
Basis of tribunal decision
At [3] to [8] of its written reasons, the Tribunal identified the relevant statutory provisions and legislative instruments relevant to the determination to be made. In particular, it addressed the criteria for satisfaction of an entitlement to grant of a Protection visa either by meeting the refugee criteria or, alternatively, complementary protection criteria. It is notable that the Applicants do not identify either in their grounds for application or submissions before the Court that the Tribunal incorrectly identified the relevant law to be applied.
At [9] and [10] of its written reasons, the Tribunal set out background information which is not in issue.
At [15] to [19], the Tribunal set out considerable case law relevant to the question of the credibility of the First Applicant’s evidence and how this impacted on the decision to be taken. Again, it is relevant to note that neither in the grounds of review nor the submissions to the Court have the Applicants contended any error in relation to either the identification or application of the law referred to above. Importantly, the Tribunal made allowances for the evidence given by the First Applicant in relation to mental health illness and satisfied itself that the First Applicant was the able to fully participate in the hearing.[1] Again, it is relevant to note that the Applicants do not contend any error arising from how the Tribunal treated the First Applicant’s mental health or the conduct of the hearing itself.
[1] Tribunal’s reasons for decision at [20] and [21].
Referring to evidence given by the First Applicant about stealing money and the First Applicant’s willingness to deceive the Second Applicant during a lengthy affair, the Tribunal concluded that the First Applicant was not a credible witness when discussing his claims about the extramarital relationship.[2]
[2] Tribunal’s reasons for decision at [25].
At [32] of the written reasons, the Tribunal disposed of its obligation to consider whether the Applicants met the requirements for protection visas by virtue of being refugees. It confirmed with the Applicants that they did not make any claims based on being persecuted for reasons of race, religion, nationality, being a member of a particular social group or having a political opinion. In these proceedings, the Applicants have not disputed that which is set out at [29] of the Tribunal’s reasons for decision. That is, they do not rely any claims pursuant to s 36(2)(a) of the Act.
From [33] onwards the Tribunal then considered, in the context of evidence before it, whether the Applicants were entitled to Protection visas pursuant to the complementary protection provisions in s 36(2)(aa) of the Act. By reference to evidence contained in documents submitted to the Tribunal, the member addressed with the First Applicant and the Second Applicant separately the claims for protection noted to arise because of concerns about the First Applicant’s safety in Malaysia.
The Tribunal reasons, at [39] to [51], contain a detailed record of what the First Applicant said during the hearing. Further, the Tribunal reasons contain a record of the Second Applicant’s evidence before the Tribunal at paragraphs [52] and [53]. It is significant to note that the Applicants do not challenge, either in the grounds of application or any submissions to the Court, the accuracy of what the Tribunal has recorded to be the evidence put before it.
The Tribunal made findings relevant to the claim based on fear for the Applicants’ safety at paragraphs [54] to [62]. Those findings again are not disputed by the Applicants.
It is apparent from the Tribunal’s reasons from paragraph [63] to [78] that the Tribunal considered the Applicants’ fear for their safety is based on the brother of the woman with whom the First Applicant had an extramarital affair. The evidence given by the First and Second Applicants is exhaustively recorded by the Tribunal member, who explored the nature of the claimed harm by putting questions about what authorities had the done about it, and whether the claimed harm was capable of being avoided by relocation within Malaysia.
Ultimately, noting inconsistencies in the evidence given by each Applicant and having made adverse credit findings about the First Applicant, the Tribunal found it plausible that one of the woman’s brothers became aware of the First Applicant and his sister behaving in a manner thought to be inappropriate and that he confronted the First Applicant.[3] However, for reasons concerning lack of reliability of the First Applicant’s evidence, the Tribunal concluded at [85] that it did not accept as credible the Applicants’ claim that the woman’s brother continued to seek revenge after the assault at the police station.
[3] Tribunal’s reasons for decision at [80].
Further, the Tribunal rejected the claim that the woman’s brother had a network of people, including people with guns, which would enable him to find and harm the First Applicant. The basis for rejecting this claim was that the Tribunal considered that, if such a network existed and the woman’s brother had wanted to harm the First Applicant, then something would have happened to the First Applicant prior to his departure from Malaysia.[4]
[4] Tribunal’s reasons for decision at [84] to [87].
Relying on the findings referred to at [16] and [17], the Tribunal rejected the claim that the woman’s brother would seek to harm the First Applicant or the Second Applicant if they return to Malaysia.[5]
[5] Tribunal’s reasons for decision at [88].
The Tribunal also set out, in a detailed fashion, the evidence given by the Applicants concerning the woman’s uncle and the fear of harm based on his actions or statements.[6] Again, no challenge is made to the accuracy of what the Tribunal records to be the evidence given by the Applicants.
[6] Tribunal’s reasons for decision at [89] to [92].
Having considered the evidence, the Tribunal found that the woman’s uncle had provided money for their wedding and then demanded it back when the First Applicant’s relationship with her ended.[7] It also accepted that the First Applicant reported the demands for money to the police and was told that he should pay it back, but that the First Applicant chose not to do so.[8] The Tribunal accepted the Second Applicant’s evidence that she received a call from the uncle telling her that the First Applicant was not a good man and that he needed to pay the money back, but did not accept the uncle’s statements constituted threats to either Applicant. [9]
[7] Tribunal’s reasons for decision at [104].
[8] Tribunal’s reasons for decision at [105].
[9] Tribunal’s reasons for decision at [106].
The Tribunal did not accept that the Applicants were being watched and followed in Malaysia because of the debt to the uncle. However, it accepted as plausible that the uncle still wants the money provided for the wedding to be repaid.[10] The Tribunal said that it accepted that if the First Applicant were to repay the debt to the uncle then “that would be the end of the matter”.[11] Concerning the fear of harm posed by the uncle, the Tribunal noted the evidence given by the First Applicant that the uncle is a convicted criminal involved in a murder case and is a member of “Gang 36”.[12] It accepted that Gang 36 was a notorious gang, but noted there was no evidence of the uncle’s connection with Gang 36.
[10] Tribunal’s reasons for decision at [110].
[11] Tribunal’s reasons for decision at [110].
[12] Tribunal’s reasons for decision at [111].
The Tribunal noted that the Applicants had not been harmed in the period between the end of the relationship with the woman and their departure from Malaysia. Significant weight was placed on this fact found in arriving at the conclusion that it did not accept as credible that the Applicants would be harmed by the woman’s uncle if they returned to Malaysia.[13]
[13] Tribunal’s reasons for decision at [112].
Other claims were made about debts owed by the First Applicant and fear concerning what might happen should they return to Malaysia,[14] but again the claim in respect of this was regarded not to be credible.[15]
[14] Tribunal’s reasons for decision at [115] to [119].
[15] Tribunal’s reasons for decision at [122].
The Tribunal also considered the First Applicant’s claims concerning mental health and accepted the he had been hospitalised and received treatment for an anxiety disorder.[16] It found that the timing of the episode of hospitalisation occurred not when the First Applicant stated, but in Kuala Lumpur at the time of his reconciliation with the Second Applicant.[17] Relying on country information, the Tribunal then found that the First Applicant would not be prevented access to necessary health care for any reason if he returned to Malaysia.[18]
[16] Tribunal’s reasons for decision at [125] to [128].
[17] Tribunal’s reasons for decision at [128].
[18] Tribunal’s reasons for decision at [130] to [135].
Noting the findings summarised in the foregoing paragraphs, the Tribunal then concluded that the Applicants did not face a real risk of significant harm of being arbitrarily deprived of their life or a death penalty being carried out, or being subjected to torture or cruelty inhumane treatment, punishment or degrading treatment or punishment, if they were to return to Malaysia.[19] That is, the Tribunal rejected any entitlement to protection based on complementary protection grounds.
[19] Tribunal’s reasons for decision at [139].
Court Review
A review by this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
The Applicants relied upon the application filed on 26 July 2017 and affidavit filed 21 August 2022 which was received in evidence and marked at Exhibit A-1. They also agreed that the Court should take into account the Court Book filed by the Respondent on 14 November 2017, which was received as Exhibit R-1.
An explanation was given to the Applicants of the nature of judicial review, and the function of the Court on such an application. In particular, the explanation was that the Applicants needed to demonstrate jurisdictional error and that the Court did not undertake a merits review to determine the claims for protection afresh. The Applicants confirmed that they understood the explanation given.
When invited to make submissions the Applicants, unsurprisingly as lay persons, had difficulty. However, the First Applicant stated “I leave that country Malaysia because of my safety and my wife’s safety. Actually I did a mistake by having a relationship with another woman without my wife’s knowledge.”
I suggested it might be useful for the Applicants to hear the submissions of the First Respondent to understand the basis upon which the First Respondent contends the application for review should be dismissed and that they then respond. The Applicants agreed to this course.
After discussion at the commencement of the First Respondent’s submissions, I made a ruling that Grounds Two and Three of the application should be struck out and provided brief reasons for that order. Ground Two was struck out because it was incomplete and did not make sense. Ground Three was struck out because it did not identify a potential basis of jurisdictional error, but instead simply sought relief by way of reconsideration by the Tribunal.
Noting that Grounds Two and Three of the application for review had been struck out, the only remaining ground of concern is Ground One, being that the decision was affected by an error of law.
First Respondent’s submissions
Counsel for the First Respondent submitted that Ground One could be dismissed, because it is too broad and does not identify jurisdictional error. It was submitted that a ground for review needed to establish high level specifics of the asserted jurisdictional error, which Ground One failed to do.[20]
[20] NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37], citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21].
In addition, the First Respondent submitted that a fair reading of the Tribunal’s written reasons demonstrated that there was no relevant jurisdictional error. The written reasons were said to be detailed, considered and addressed each of the claims made by the Applicants, and whether the statutory requirements for Protection visas pursuant to the refugee or complementary protection provisions of the Act were satisfied.
The Tribunal was not satisfied that the claims satisfied the statutory requirements, and a large basis for this was that it rejected the evidence of the First Applicant upon which the claims were based.
The Applicants were then invited to address the First Respondent’s submissions.
Applicants’ submissions
The Applicants did not make any specific submissions in reply and the Court sought to understand in some manner what the nature of the purported jurisdictional error was alleged to be.
The First Applicant stated that he had not had enough time to submit evidence, and before he had submitted further evidence the Tribunal had made its decision. In endeavouring to explore whether there was any substance to a possible asserted jurisdictional error by failure to afford procedural fairness or refusal of an opportunity to submit evidence, I took the Applicants through the chronology of events relevant to the application before the Tribunal and asked for comment. They agreed that the chronology was as follows:
·17 February 2017 – application filed for merits review by the Tribunal;
·8 May 2017 – the Applicants were invited to attend a hearing before the Tribunal; and
·5 June 2017 – the Applicants attended the Tribunal hearing in person, gave evidence, and relied on documents in the Court Book.
I commented that the decision of the Tribunal was then not made until 28 June 2017 and I was having difficulty understanding the submission that there had not been enough time to submit evidence in support of the claims. The First Applicant replied, stating that he had learned that he could obtain two more police reports if he goes to Malaysia. Directly asked how this was relevant to the question of whether the Tribunal had made a jurisdictional error, the First Applicant stated “after I learned from a gentleman that there are chances I might be accepted” if the additional reports were provided.
I asked what the reports may contain and how they are relevant to the claims for protection. I was simply told that the reports had lots of things in them. As the Applicants’ contentions were not making particular sense and were not particularised as components of the singular ground of review, I enquired whether the Applicants had read the decision of the Tribunal and understood it. I briefly explained that the basis for affirming the refusal of the visas was because, although the Tribunal accepted much of the evidence of the Applicants about the extramarital affair and demands for money by the uncle and the fear of the brother, the Tribunal was not satisfied that there was substantial grounds for believing that as a necessary and foreseeable consequence of returning to Malaysia, there was a real risk that the Applicants would suffer significant harm, where significant harm had the particular meaning in s 36(2A) of the Act.
I invited the First Respondent’s solicitor to address the reasons of the Tribunal to afford the Applicants the opportunity of hearing those reasons translated by the interpreter proficient in Tamil language. Having had Counsel’s explanation given, which I consider was consistent with the terms of the written reasons, the Applicants were invited to make any submissions in reply, but had none.
The First Respondent also submitted that, to the extent that the Applicants were now claiming that the existence of documents that they had turned their mind to after the Tribunal made its decision would assist them in the claim, there was no evidence that the Applicants had either asked the Tribunal to delay making its decision or that they sought to provide further documentary evidence. The First Respondent contends that, in those circumstances, even if there are documents that evidence the extent of harm should the Applicants return, this cannot amount to a jurisdictional error.
The First Applicant confirmed to the Court that he had not requested an adjournment and believed that he had time to submit those documents before the decision.
I again enquired of the First Applicant what the nature of the documents were and what they may prove. He stated that they will prove that “the girl’s uncle have connection with a gang and criminal activities.”
I enquired of the First Applicant that, if that was his case, why was it that there was no ground for review concerning this complaint now made during the hearing. The First Applicant was unable to explain this and did not provide any further submission.
I drew the Applicants’ attention to the application made by the First Respondent for an order for costs in the event that the Court dismissed the application for review. I invited the Applicants to indicate whether they wished to make submissions as to costs now or at a later time once the Court delivered its judgment. The First Applicant stated they preferred to address costs later and I made an order reserving the judgment and adjourning the question of costs to the date of judgment on a date to be fixed.
evaluation
Noting that Grounds Two and Three of the application for review were struck out for the reasons expressed in [31], the Court is to ascertain if there is any jurisdictional error on the basis encompassed by Ground One and the submissions made by the Applicants orally at the hearing.
It must be observed that the manner in which the hearing proceeded indicated to me that the Applicants did not appreciate that the Court has limited functions and power on an application for judicial review.
Even after the explanation given and referred to at [28], the First Applicant enquired if upon remittal the Tribunal would take further evidence from him for the purpose of deciding whether the Protection visas should be granted. In reply to this, I stated that a rehearing would only occur if the Court decided that there was jurisdictional error by the Tribunal and that this hearing was their opportunity to persuade me of that.
The matters referred to at [48] and [49] make it unsurprising that the Applicants have not formulated in a coherent manner what they contend to be jurisdictional error on the part of the Tribunal below.
Being left to distil their submissions before me, I interpret that they possibly purport to argue jurisdictional error in the Tribunal’s consideration of the complementary protections claim. Perhaps, jurisdictional error:
(a)By failure to consider relevant evidence about the nature of harm posed by the uncle should the First Applicant return to Malaysia; or
(b)By failure to adjourn or allow time to submit further documentary evidence corroborating the claims referred to at [44].
Mr Taylor was able to effectively and flexibly adapt to respond to the apparent basis of possible jurisdictional error raised during the hearing before the court. I am satisfied that the First Respondent has had a proper opportunity to be heard in respect of the same.
The purported failures apparently advanced by the Applicants can be usefully addressed collectively and together.
During the hearing before the Court, the First Applicant conceded the following and I find:
(a)He had some four and a half months between the time they applied to the Tribunal for administrative review of the delegate’s decision and the hearing, to gather any documents and evidence upon which they wanted to rely.
(b)He did not provide any documents to the Tribunal for the hearing on 5 June 2017, except those in the Court Book;
(c)Both he and the Second Applicant gave evidence at the hearing;
(d)No request was made at the Tribunal hearing for time to submit further documents and, by inference based on what the First Applicant told the Court, no request to adjourn was made;[21] and
(e)Since the Tribunal made its decision and the hearing today, they had not filed any other documents corroborating the claims of harm posed by the brother or uncle, other than those annexed to Exhibit A-1.
Failure to consider relevant evidence relating to the uncle or failure to give time to submit documents?
[21] At [43] of these reasons.
The Tribunal reasons demonstrate that thorough consideration was given to the claims and evidence by the Applicants, concerning the claimed threats and harm by the uncle should they return to Malaysia.
Noting the concession at [43] and findings referred to at [54] of these reasons, the Applicants had not sought to rely on further documents to corroborate their claims before the Tribunal. Further, based on what the First Applicant told the Court, it only occurred to the Applicants that they might seek to obtain other documents to corroborate the claims after the Tribunal had made its decision.
No jurisdictional error can arise on the basis of a purported failure to consider evidence said to be relevant to a claim for protection if the evidence is not put before the Tribunal.[22] In addition, the Tribunal reasons for decision and findings at [54] above demonstrate that it afforded procedural fairness to the Applicants.
[22] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [25] to [26].
Further, some 5 years have passed since the decision was taken by the Tribunal. During this time, the only additional evidence provided is Exhibit A-1, which the Court has read and considered. The Exhibit is an affidavit which annexes copies of three documents:
(a)A photo relating to the wedding with the woman with whom the First Applicant had an affair;
(b)A close up photo of a tattoo of the First Applicant’s name said to be on the woman’s body; and
(c)A Malaysian Police Report, which is not translated into English but was apparently made in April 2016.
Although the Applicants claim that they did not have time to obtain the unspecified documents referred to at [38] and [39] of these reasons for the hearing in the Tribunal or before the Court, I do not accept that to be the case. The police report annexed to the affidavit which was received as Exhibit A-1 is dated well before the hearing in the Tribunal. No explanation was given as to why other police reports now said to be relevant to the claims could not have been obtained at the same time. It is reasonable to infer that they could have been previously obtained.
During the hearing before the Court, the First Applicant claimed there were two other police reports that supported their evidence about risk of harm from the uncle. But as noted, these have not been put before the Court and soon after the hearing commenced, the First Applicant stated that they were ready to proceed with the hearing of the application for review. No application was made to the Court to adjourn the judicial review hearing.
It is well established that jurisdictional error cannot arise in such circumstances. The types of failures by a Tribunal that might invoke jurisdictional error of a particular nature, such as described in the Court’s judgment in Plaintiff M1/2021 v Minister for Home Affairs, simply do not arise in this matter.[23]
[23] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [27].
The affidavit filed 26 August 2022 and documents annexed marked 1 and 2 do not assist the Applicants in establishing jurisdictional error. This is because the Tribunal accepted and found that the First Applicant married the woman in a religious ceremony and that he took money from her uncle which was later demanded to be repaid when the relationship ended.[24] However, the Tribunal was not satisfied the Applicants would suffer significant harm within the meaning of that term in s 36(2A) of the Act, despite that acceptance.
[24] Tribunal’s reasons for decision at [104].
That conclusion was reasonably open to the Tribunal on the evidence and findings it made on merits review of the primary decision[25] to refuse the protection visas, because:
a.It is well established that an applicant to a Protection claim must satisfy the Tribunal of the statutory requirements for eligibility for a visa.[26] The evidence the Applicants put before the Tribunal failed to persuade it of the statutory requirements in s 36(2)(aa); and
b.the factual findings made and conclusion of the Tribunal were not illogical or unreasonable, such that jurisdictional error is established.[27]
[25] Sections 348 and 349 of the Act.
[26] Abebe v the Commonwealth of Australia [1999] HCA 14 at [187] to [188].
[27] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
There is no substance to the Applicants’ contentions and the application for review fails. There will be an order that the Application for review is dismissed.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 4 November 2022
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