DMC18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 768
•23 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DMC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 768
File number: SYG 1864 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 23 August 2024 Catchwords: MIGRATION LAW – Administrative Appeals Tribunal – Protection visa – No jurisdictional error established – Application dismissed. Legislation: Migration Act 1958 (Cth) ss 5J, 5LA, 36
Migration Regulations 1994 (Cth) Sch 2
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
P119/2002 v Minister for Immigration [2003] FCAFC 230
Perera v Minister for Immigration (1999) 92 FCR 6
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
SZOYU v Minister for Immigration and Citizenship [2012] FCA 936
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 20 August 2024 Place: Parramatta Solicitor for the Applicant: In person Solicitor for the Respondents: Ms Edmondstone (MinterEllison) ORDERS
SYG 1864 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DMC18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
23 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5900.00.
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:
INTRODUCTION
The applicant is a citizen of Malaysia. He arrived in Australia on 15 November 2016 as the holder of an Electronic Travel Authority visa.
On 15 February 2017, the applicant applied for Protection (Class XA) visa (“the visa”). On 30 May 2017, a delegate of the Minister for Home Affairs (“the delegate”) refused to grant the applicant the visa.
On 9 June 2017, the applicant lodged an application for review with the Administrative Appeals Tribunal (“the Tribunal”). On 1 June 2018, the Tribunal affirmed the decision not to grant the applicant the visa.
For the reasons set out below, the application must be dismissed.
THE ADMINSTRATIVE APPEALS TRIBUNAL’S DECISION
From [3] to [7], the Tribunal instructed itself as to the criteria for a protection visa which is set out in s 36 of the Migration Act 1958 (Cth) (“the Act”) and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
In accordance with Ministerial Direction No.56, the Tribunal has considered policy guidelines prepared by the Department of Immigration and relevant country information assessments by the Department of Foreign Affairs and Trade.
The Tribunal acknowledged at [10] that the applicant is a citizen of Malaysia which is his receiving country for the purposes of the refugee and complementary protection assessments.
The applicant’s claims for protection in the written application form differ from those raised at hearing. At [15], the applicant explained that the claims in his application form were filled out by an agent and were not true. The new protection claims advanced at the Tribunal hearing and at [11]-[24] of the Tribunal decision include that:
·The applicant was accused of sexually assaulting his neighbour who was also a close friend, and this is why he decided to come to Australia. Although, he agreed that the villagers also accused him of having a sexual relationship with the neighbour.
·The applicant explained that he did not sexually assault the neighbour, but the villagers were forcing him to marry her. Despite being shown country information to suggest that it was not possible to force a person to marry against their will, the applicant stated that in circumstances, where he has been accused of having sexual relations outside of marriage, they will be forced to marry.
·The applicant claimed he cannot live with his father in a different part of Malayia. He stated that he loved another person and if he were to return to Malaysia he would continue to think about the “incident”. The applicant said the problem would be there, regardless of where he lived in Malaysia. The applicant did not report the matter to police because he did not “wish to blow this case out of proportion” and “he merely wanted to run away from the problem”.
·The applicant stated that he had been accused of having sexual relations with the neighbour and as result he fears that if he returns to Malaysia, the neighbour’s family might ask him to marry her.
The Tribunal accepted that the applicant requested someone to fill out his application form. They did not place any adverse weight on the inconsistencies and accepted the applicant’s version of events at the hearing and his fears upon his return to Malaysia as a “true record”.
At [37], the Tribunal found the applicant to be a credible witness and accepted that he had not sexually assaulted the neighbour and he also did not have sexual relations with her.
The Tribunal found that the applicant belongs to a membership of a particular social group, a “man subject of a forced marriage by a girl’s family who accused him of sexual assault/sexual relations with that girl”. The Tribunal was satisfied that being forced to marry against one’s will amounts to serious harm. The applicant’s fear of harm was accepted as being genuine as per s 5J of the Act.
Although at [41], the Tribunal does not accept that the applicant did not have access to appropriate and effective protective measures and that he would be denied effective protection measures because he is avoiding marrying someone against his will. At [45], the Tribunal found that by operation of ss 5J(2) and 5LA of the Act, the applicant does not have a well-founded fear of persecution as someone subject of forced marriage or for any other reasons mentioned in s 5J(1)(a) of the Act. As a result, the Tribunal found that the applicant does not satisfy s 36(2)(a) of the Act regarding his claims as a member of a particular social group.
The Tribunal did not accept that as a man, who is the subject of a forced marriage because of an accusation that he had sexual assault/sexual relations with the neighbour, there is a real risk that he will suffer significant harm. This includes being subjected to cruel or inhuman treatment or punishment by continuing to falsely accuse him of sexual assault/sexual relations with her so that he will marry her, and the Tribunal finds that this harm will amount to significant harm as outlined in s 36(2A) (c) and (d) of the Act.
In the alternative, the Tribunal did not accept that the applicant is not able to relocate to another part of Malaysia because he did not wish to be reminded of the “incident”. Ultimately, the Tribunal did not consider it was unreasonable for the applicate to relocate.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained in an Originating Application filed with the Court on 4 July 2018. There are seemingly six grounds of review contained in the application, the first three are numbered, however the remaining three grounds were not numbered. The grounds raised by the applicant are:
1.I have a bit nervous during a hearing session and I can't remember any point at all
2.I was under stress situation during the hearing session
3.By the time being I can't really going back to my country yet because it's too risky.
…
4.When the interview session which was held on 05th Dec 2017, I was been given a chance to talk, but due to my situation which when the interpreter explain to me which my main reason to get a protection in Australia which was totally different than my main reason that I came here, because I trust the person that fill a form which cheat on me and use other reason than my actual main reason, I became under pressure and it make so hard for me to explain my main reason which I can't remember any point at all.
5.The interpreter was not explained very clearly to me about the question that been ask by the AAT officer, so it was a bit confusing
6.Because Im nervous and I cant remember any point at all I cant explain with the AAT my actual main reason to get protection visa in Australia. My life is too risky when I go back to my country, cause my main reason that I was accused of my raping my neighbour which I never touched her at all but she try many ways cause she likes me and want to get married with me. Because her brother is the head of gangster in my village, I feel scared because he often threaten to kill me and I cant stand live in fear.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He 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 first respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wished to.
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.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court initially that he did not want to say anything. When pressed as to what jurisdictional error was present in the Tribunal decision he responded, “I do not think there is anything wrong with the decision”.
In light of the applicant’s concession, the first respondent relied upon the written submissions already filed and did not supplement them with oral submissions. The applicant was then asked if he wished to state anything in reply. Through the interpreter, the applicant made a statement to the Court as to the reasons why he wished to remain in Australia. The Court told the applicant that these matters only went to the merits of his case and could not be considered by the Court as the Court was restricted to jurisdictional error.
THE FIRST RESPONDENT’S SUBMISSIONS
Grounds one and two
In regard to grounds one and two, the first respondent submits that these grounds fail to raise proper allegations of error in the Tribunal's decision and amount to no more than an invitation to the Court to engage in impermissible merits review.
The first respondent submits that these grounds should be dismissed as there is no evidence to suggest that the applicant was not in a fit state to participate in the hearing such that he was not provided with a real and meaningful opportunity to give evidence.
Grounds three and six
The first respondent submits that grounds three and six simply re-state the applicant's claims for protection that were raised before the Tribunal, and he also raises new claims for protection that were not raised before the Tribunal. As such, these grounds amount to no more than an invitation to the Court to engage in impermissible merits review.
In ground six, the applicant claims that the neighbour’s brother is the “head of gangster” in his village. It is submitted that the Tribunal's decision does not contain any claim relating to the neighbour’s brother. The applicant does not say that he felt scared by the brother, and that the brother threatened to kill him.
In the Tribunal decision, when the applicant was asked what would happen if he returned to Malaysia, he stated that “he was not sure, but the girl's family wanted him to marry her” and his claims were accepted as “a true record”. The first respondent submits that it can be construed as an allegation that the Tribunal failed to consider the applicant's claim for protection, and it is submitted that there is no evidence that this claim was raised before the Tribunal. As such these grounds do not disclose jurisdictional error and should be dismissed.
Ground four
In relation to ground four, the applicant alleges that a migration agent completed his application for the visa, and it included “other reason than [his] actual main reason”. The first respondent submits that this ground should be dismissed as the Tribunal accepted that the application was filled out by an agent and the claims were not true. In the Tribunal’s record, it states that no adverse weight was placed on the inconsistences between the original claims and the claims raised at the hearing. The Tribunal accepted the applicant’s version of events at the hearing.
Ground five
In ground five, the applicant alleges that the interpreter at the Tribunal hearing did not clearly interpret the questions asked of the applicant, causing the applicant to find the questions confusing.
The first respondent submits that there is no evidence to suggest that the standard of interpretation prevented the applicant from giving evidence, or that any interpretation errors affected the Tribunal's findings. The applicant did not provide a transcript prepared by an accredited interpreter which sets out the words used by the applicant and the Tribunal and the interpretation of those words by the interpreter and the proper interpretation of the words in the Malay language.
It is submitted that ground five cannot be made out and should be dismissed as the Tribunal's reasons do not indicate that the applicant complained about the interpreter or had any difficulties in understanding the Tribunal's questioning as a result of the interpreter, at the hearing.
CONSIDERATION
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.
It is well established that the Tribunal is not required to accept uncritically any, and all claims made by an applicant; (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]).
Nor does the Tribunal have to possess rebutting evidence before them holding that a particular assertion was not made out; (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348]).
It is for the applicant to satisfy the Tribunal Authority, being the relevant decision-maker, that the applicant meets the criteria for being a refugee; (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
Grounds one and two are simple statements as to how the applicant felt at the Tribunal hearing. They raise no allegation of jurisdictional error and are not proper grounds of judicial review. Grounds one and two have no merit.
The Court accepts the respondent’s submission that grounds three and six simply re-state the applicant’s contention that he cannot return to Malaysia. Ground six contains an allegation not put previously, that the brother of the woman with whom he is alleged to have had intercourse with, is a gangster in the applicant’s village. These grounds do not allege any jurisdictional error and have no merit.
Ground four is somewhat confusing. It appears that the applicant alleges that the person who filled in his application for the visa did not set out the real reason why the applicant came to Australia. The Tribunal at [34] accepted the applicant’s account of the true reasons as to why he came to Australia and did not place any adverse weight on the change in the claims of the applicant. The Court is satisfied there was no fraud on the Tribunal and the applicant was not in any way disadvantaged due to the change in his claims. No jurisdictional error is apparent as the Tribunal considered that applicant’s claims as articulated at the hearing. Ground four has no merit.
Ground five is a claim as to issues with the standard of interpretation. 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 hearing were material to the conclusion of the Tribunal and adverse to the applicant;(see: P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16] – [17]; 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).
There is no evidence before the Court such as a translation check of the transcript as compared to the audio hearing, that the translation was so inadequate as to amount to jurisdictional error. The Court also agrees with the submission of the first respondent that the applicant does not appear at any point in the Tribunal hearing to complain that he did not understand the questions or what was being said in the Tribunal hearing. Given this lack of evidence, ground five has no merit.
As the applicant is unrepresented, the Court has perused the Tribunal decision record and the Court book. The Court is unable to detect any unarticulated jurisdictional error.
DETERMINATION
The application is dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 23 August 2024
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