DKT24 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1201

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DKT24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1201

File number(s):

PEG 201 of 2024

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

15 November 2024

Catchwords:

MIGRATION – Administrative Appeals Tribunal - Protection visa -   Invitation for the court to undertake impermissible merits review – no illogicality, irrationality or legal unreasonableness – allegation of language barrier in Tribunal hearing – no merit – no jurisdictional error established – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 36(2)(a), 36(2) (aa), 424, 499

Migration Regulations 1994 (Cth) sch 2

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Fox v Percy [2003] HCA 22

NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10

Perera v Minister for Immigration (1999) 92 FCR 6

P119/2002 v Minister for Immigration [2003] FCAFC 230

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

SZOYU v Minister for Immigration and Citizenship [2012] FCA 936

Division:

Division 2 General Federal Law

Number of paragraphs:

38

Date of hearing:

8 November 2024  

Place:

Perth

Solicitor for the Applicant:

Self-represented litigant

Solicitor for the First Respondent:

Ms Ismailjee (Sparke Helmore)

Solicitor for the Second Respondent:

Submitting appearance, save as to costs.

ORDERS

PEG 201 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DKT24

Applicant

AND:

MINISTER OR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	15 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6500.00.

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 D HUMPHREYS

BACKGROUND

1. The applicant is a citizen of Malaysia. She arrived in Australia on 3 August 2017. On 2 October 2017 she applied for a protection visa. In her protection visa application. she claimed to fear harm from economic hardship and the inability to find employment.

2. On 24 November 2017, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the delegate”) refused to grant the applicant a visa. On the same day the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) as it was then, for review of the delegate’s decision.

3. On 7 May 2024, the Tribunal affirmed the decision of the delegate. The applicant now seeks judicial review of the Tribunal decision.

4. For the reasons set out below, the application must be dismissed.

   THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION

5. The Tribunal correctly instructed itself as to the criteria for a protection via which is set out in s 36 of the Migration Act 1958 (Cth) (“ the Act”) and Schedule 2 to the Migration Regulations1994 (Cth). Further, the Tribunal took into account mandatory considerations in accordance with Ministerial Direction No.84 made under s 499 of the Act, as well as relevant reports and country information assessments prepared by the Department of Home Affairs and Department of Foreign Affairs and Trade (DFAT) respectively.

6. At [12] the Tribunal summarised the applicant’s claims for protection:

   •She left Malaysia as she was desperately looking for a job. She came to Australia in hope to find a job. She has no qualification in Malaysia and unable to get some money.

   •She will commit suicide because she has no use of her life if she is unable to work and earn money.

   •She was almost committing suicide and depression. She came to Australia in hope that she can change her life.

   •She was afraid and ashamed of her inability to find a job.

   •She has asked a few organisations to help her, but they neglected her.

   •She has no resources to relocate.

7. The applicant responded to a s 424(2) request by the Tribunal and provided a short statement. In it she detailed that she came to Australia as she was running away from domestic violence allegedly perpetrated by her second husband, who on one occasion repeatedly hit the applicant. This led to her filing a police report. The applicant also noted that she had loans that were put into her name by her husband, and she came to Australia for temporary protection and to settle her debts.

8. In a further statement provided to the Tribunal the applicant made the following claims:

   ·She borrowed money for her ex-husband and to settle debts. Her husband beat her in April 2017, and she went to make a police report but withdrew it because of her husband.

   ·She has been employed regularly since being in Australia. She fell pregnant in 2018 and was assisted by her third husband to pay her debts.

   ·She was involved in a motor vehicle accident in 2017 and again in 2022. She received treatment from a psychologist. 

   ·Creditors were still chasing her in Malaysia.

9. The Tribunal’s findings as the applicant’s claims are as follows:

   ·The Tribunal found the applicant’s evidence about her ex-husband to be credible. Particularly, that he was controlling coercive and violent toward her; that she had tried to lodge a police complaint which was later withdrawn; that she entered into a number of contracts on his behalf; that her two kids live with the second husband and his family [56].

   ·The Tribunal raised concerns about the credibility of the applicant’s claims to fear harm from her second husband as she had not mentioned this fear in her protection visa application. The applicant claimed she was focussed on getting money to clear her debts. The Tribunal drew an unfavourable inference to the applicant’s claim about her second husband and did not find that it was credible [59]-[60]. The Tribunal also found that effective protection measures were available to the applicant in Malaysia to adequately protect her from the ex-husband or his family [67].

   ·The Tribunal did not accept that the applicant faces harm on her return to Malaysia or that she had a well-founded fear of persecution from her ex-husband or any other related claim or reason [68].

   ·The Tribunal noted that the applicant’s claims for protection were similar to claims made by people who were before the Tribunal. The applicant initially said that she had prepared her claims for protection herself, but in answer to the Tribunal’s questions, the applicant said that other people around her household could have seen the paperwork.

   ·The applicant claimed that she fears she will be unable to access assistance for her mental health issues should she return to Malaysia. The Tribunal accepted, based on country information, that the applicant may need to travel, however she would still be able to access the appropriate services in Malaysia if she had to [73].

   ·The Tribunal did not accept there was a real risk the applicant would face significant harm because of either her mental health issues or her son’s need for speech therapy services [87]-[88].

   ·The Tribunal did not accept that there was a real chance that the applicant would face any kind of harm on the basis of economic hardship if returned to Malaysia: [79]-[80]. It accepted that the applicant may face some financial hardship upon her return, however it did not reach the level of significant harm as envisioned by s 36(2)(a) of the Act .

10. Accordingly, the Tribunal affirmed the decision under review. The Tribunal found that the applicant did not satisfy s 36(2)(a), or the relevant complementary protection criterion in s 36(2)(aa).

    GROUNDS OF JUDICIAL REVIEW

11. The applicant’s grounds of review are contained in an Originating Application filed with the Court on 5 June 2024. The grounds are as follows (reproduced with errors as in the original):

    1.  The decision of Tribunal

    a. Serious harm related to domestic violance refers to physical, emotional, or psycological abuse the occurs. Applicant clearly suffering from physical harm, social isolation, financial harm, emotional and psycological harm may be risk of suicide is Tribunal failure to consider relevent evidence.

    b. Applicant cannot work if living in fear with kids without any protection which guarantees absolute safety. Threats are sure to come and various forms of attacks can happen. Evidence from the police report as a proof no futher action be taken. making unfairness decision for applicant.

    c. English is the applicant's second language. The applicant may face additional challenge but the applicant gives efforts to improve English language skills. Misunderstandings or miscommunications from both side needs to consider rehearing.

    THE APPLICANT’S SUBMISSIONS

12. The applicant appeared before the Court unrepresented.  She was assisted by an interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to her.  The Court also ensured the applicant had access to a pen and paper so she could take notes during the hearing should she so wish to.

13. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

14. Despite Court orders, no written submissions or other material was provided to the court by the applicant in support of her case.  The applicant told the Court she was sure that Australia would take care of her rights as a woman as compared to her country. She felt that she had different rights in Australia. She stated she had informed the Tribunal she was a victim of domestic violence and as a result she had a right to stay in Australia.

15. She confirmed she had given to the Tribunal a copy of a police report from Malaysia regarding her domestic violence and confirmed that the Malaysian police had taken no action following the report.

16. She felt the language barrier had caused the Tribunal not to be properly informed as to her situation.

17. At the conclusion of the respondent’s oral submissions, the applicant was asked if she wished to state anything in reply.  She answered that it was unfair that she cannot get a protection visa.

    THE FIRST RESPONDENT’S SUBMISSIONS

18. It was submitted that the Tribunal considered all of the applicant’s evidence and properly concluded, in a 19-page decision, that the applicant did not face a chance of harm for any reason upon returning to Malaysia. The Tribunal’s finding was open to it, on the evidence before it.

19. The first particular cannot succeed. The Tribunal found that the applicant’s ex-husband no longer had an adverse interest in her and had not made contact since 2020. There was nothing illogical or irrational in this finding. Further, the Tribunal is not required to refer to or make findings on every piece of evidence advanced by an applicant.

20. The second particular is not a proper ground of judicial review. It simply invites the Court to undertake a review of the merits of the Tribunal’s decision which it cannot do. On this basis the Minister submits this ground should be dismissed.

21. As to the complaint in the third particular, being that there were misunderstanding from both sides which occurred due to language barriers, there is no evidence that either the applicant or the Tribunal had any difficulty in understanding each other. In accordance with Division 4 of Part 7 of the Act, the Tribunal provided the applicant with an interpreter when she was invited to attend a hearing. The Tribunal’s summary should be taken as accurate in circumstances where there is no transcript to prove otherwise.

22. The Tribunal was open and justified in its reasons, particularly where the applicant told the Tribunal she had not had contact with her ex-husband for six years and where the Tribunal found she would be able to find employment in Malaysia.

    CONSIDERATION

23. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

24. It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451].

25. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348].

26. It is well established that the Tribunal enjoys an advantage of fact to test the veracity of the evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62] per Nettle J.

27. It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal: NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10.

28. It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].

29. In order for there to be jurisdictional error there must be evidence before the Court that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was prevented from giving evidence to the Tribunal, or that the errors made in interpretation at the Tribunal were material to the conclusion of the Tribunal and adverse to the applicant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16] – [17] and SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [29] – [30],citing with approval Perera v Minister for Immigration (1999) 92 FCR 6.

30. As to the first particular in the sole ground of judicial review, being an allegation that the applicant will suffer serious harm related to domestic violence together with social isolation, financial, emotional and psychological harm, these matters were dealt with comprehensively by the Tribunal at [54] –[78]. The Tribunal found, for the reasons it gave, that it had significant concerns about the credibility of the applicant given the changes in her evidence over time.

31. The Tribunal considered the claim in relation to fear of domestic violence from her second ex-husband even while noting, that at [61] the Tribunal was satisfied that the applicant’s ex-husband had posted she had fled with a Bangladeshi man.  At [66], the Tribunal noted that the applicant’s second ex-husband appeared to have done little to enquire about the applicant since 2020, that he has now remarried and has custody of their two children.

32. The Tribunal noted country information which indicated there are effective measures available to the applicant in Malaysia in the event that she is subjected to violence or threats from her ex-husband or his family. At [70] onwards, the Tribunal considered the applicant’s claims in relation to fear from emotional and psychological harm but concluded that adequate health care was available in Malaysia, noting country information about the general availability of universal health care.

33. At [77], the Tribunal found that whilst there may be a period of readjustment, the applicant would have adequate means to support herself and that any economic hardship she might face would not be serious in that it would not threaten her capacity to subsist.

34. The Court is satisfied there was nothing illogical, irrational or legally unreasonable in these findings. They were open to the Tribunal on the evidence that was before it and for the reasons it gave. The first particular of ground one has no merit.

35. The Court agrees with the submission of the respondent that the second particular of the sole ground of judicial review simply invites the Court to undertake impermissible merits review. The ground rises no higher than an expression of disagreement with the Tribunal’s findings. The second particular within the sole ground of judicial review has no merit.

36. The third particular alleges “misunderstandings on both sides as a result of language issues”. The Court notes that the applicant was provided with access to an interpreter. Without evidence indicating that there were serious errors adverse to the applicant in the translation, such as a transcript pointing out those errors by a qualified interpreter, this ground cannot be made out. Allegations of translation errors are serious and require proof for the Court to find jurisdictional error. The third particular of the sole ground of judicial review has no merit.

    DETERMINATION

37. As the applicant is unrepresented, the Court has perused the relevant Court Book and the decision record of the Tribunal. The Court is unable to ascertain any un-articulated jurisdictional error.

38. In these circumstances, the application must be dismissed.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       15 November 2024