DQX18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1411
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQX18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1411
File number(s): MLG 2037 of 2018 Judgment of: JUDGE BINGHAM Date of judgment: 19 December 2024 Catchwords: MIGRATION – application for review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – protection claims made on the basis of economic hardship and marriage – procedural fairness – proper construction of the Applicant’s claims – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5J, 36 and 477 Cases cited: MMM v Minister for Immigration and Multicultural Affairs [1998] FCA 1664; 90 FCR 324 Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submissions: 28 November 2024 Date of hearing: 28 November 2024 Place: Melbourne The Applicant: Appeared in person Counsel for the Respondents: Mr Barrington Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2037 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DQX18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Application filed 13 July 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.
3.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
4.The name of the Second Respondent be amended to “Administrative Review Tribunal”.
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 BINGHAM:
By an application filed in this Court on 13 July 2018 (Application), the Applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) of the decision of the then Administrative Appeals Tribunal (Tribunal) on 5 July 2018 affirming the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Class XA) Subclass 866 (Visa) (Tribunal’s Decision).
This matter was heard on 28 November 2024 in person (Hearing). The Applicant appeared in person with the assistance of a Malay interpreter. Mr Barrington of Counsel appeared for the Minister.
BACKGROUND
The background facts to this matter have been concisely set out in paragraphs [2] to [7] of the Minister’s submissions filed 13 November 2024. I have relied on these paragraphs when setting out the background below.
The Applicant is a Malaysian citizen. He arrived in Australia on 3 December 2016 as the holder of a visitor visa UD 601 Electronic Travel Authority visa which was valid until 21 November 2017.
On 6 January 2017 the Applicant married his wife, who is of Indonesian descent, in Australia.
On 28 February 2017, the Applicant lodged his application for the protection Visa (Visa Application).[1] He set out his claims briefly in the Visa Application, which can be summarised as follows:
(a)a claim to fear harm on account of a downturn in the Malaysian economy;
(b)his mother had to borrow money from the bank to reclaim family land and he would be obliged to contribute to the loan repayments;
(c)he would be isolated and mistreated by his relatives and community for not following the requisite “tradition, procedure, and protocol” with respect to his marriage.
[1] The Visa Application was dated 27 February 2017 and stamped with a received date of 1 March 2017.
Relevant statutory requirements of the Visa
Section 36(2) of the Migration Act sets out the criteria for granting a protection visa. Subsections (2)(a) and 2(aa) provide:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm;
The meaning of refugee is defined in s 5H(1) of the Migration Act and is in the following terms:
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
The meaning of well-founded fear of persecution is found in s 5J of the Act:
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
[…]
(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Delegate’s Decision
On 24 May 2017 the Delegate refused to grant the Applicant the Visa (Delegate’s Decision).
The Delegate found that the Applicant did not satisfy s 36(2) and s 5H(1) of the Migration Act. The Delegate noted that there was no claim that harm was feared in Malaysia because of race, religion, nationality, political opinion or as a member of a social group nor was there any material before the Delegate that the Applicant would be targeted for one of the reasons set out in s 5J.
The Delegate found with respect to s 36(2)(aa) of the Migration Act that there were no obligations under international law to provide protection to those fleeing violations of economic, social or cultural rights and that the Applicant had not provided evidence or outlined his claims in sufficient detail for the Delegate to form a belief that he would have a real risk of harm should he return to Malaysia.
Application for review to the Tribunal
On 5 June 2017 the Applicant subsequently applied (in time) to the Tribunal for merits review of the Delegate’s Decision.
On 6 April 2018 the Applicant was invited to attend a hearing on 26 April 2018. On 12 April 2018 the Applicant requested that the hearing be postponed as his wife was due to give birth to their child. On 13 April 2018 the Tribunal rescheduled the hearing to 7 June 2018.
On 22 May 2018 the Applicant submitted a Response to the Hearing Invitation.
On 7 June 2018 a hearing was held before the Tribunal (Tribunal Hearing). The Applicant attended with the assistance of a Malay interpreter. The Applicant’s wife’s review application was heard concurrently with the Applicant’s application.
On 5 July 2018 the Tribunal affirmed the Delegate’s Decision not to grant the Visa.
On 9 July 2018 the Applicant was notified of the Tribunal’s Decision to affirm the Delegate’s Decision.
The Tribunal’s Decision
The Tribunal prefaced its assessment of the Applicant’s claims with the following statement at paragraph [34] of the Tribunal’s Decision:
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
The Tribunal considered the Applicant’s claims under two categories: firstly economic claims, and secondly claims that related to the Applicant’s marriage.
With respect to the economic claims the Applicant asserted that he would face economic hardship in Malaysia due to a poor economy, the unstable nature of his employment, and because he was required to contribute to the repayment of a loan taken by his mother to reclaim his family’s land.
The Tribunal accepted that the Applicant came to Australia to find employment, to get married and look after himself and his family. The Applicant did not provide the Tribunal with any evidence that he would suffer economic harm that would threaten his capacity to subsist. There was no evidence that the Applicant would be denied basic services or the capacity to earn a living. Further there was no independent evidence before the Tribunal in relation to the alleged loan with respect to his family’s land or the repayments that he was alleged to have made. The Tribunal found that the loan did not exist. The Tribunal made an alternative finding that if such a loan did exist, the Applicant was sharing loan repayments with his brothers and was not incurring the full costs nor was he personally liable for the loan.
The Tribunal found that the Applicant was in fulltime work before he left Malaysia. It accepted that he would face difficulties and challenges but because of his personal characteristics and motivation it did not accept that the Applicant would be unable to find paid employment on his return to Malayasia.
The Tribunal placed considerable weight on the on the country information before it and that the Malaysian economy was growing in size and sophistication and had negligible poverty. It found that the prospects of the Applicant finding work did not amount to serious harm in the sense that neither the Applicant or his family would experience significant economic hardship or be denied the capacity to subsist.
With respect to the Applicant’s economic claims, the Tribunal found that the Applicant did not have a real chance of serious harm arising from his economic circumstances for reasons mentioned in s 5J(a) of the Migration Act if he was to return to Malaysia.
The Applicant contended before the Tribunal with respect to those claims associated with his marriage that he would be mistreated by his relatives and community if he returned to Malaysia because he did not get married in accordance with traditional Islamic procedures and protocols.
The Tribunal found that the Applicant was married in an Islamic ceremony in accordance with Islamic rites in a Mosque in Shepparton. No evidence was provided to the Tribunal regarding the alleged traditional procedures and protocols that would make the marriage acceptable to the Applicant’s family and community.
It was submitted by the Applicant that if he returned to Malaysia his family would force him to leave his wife because she is ethnically Indonesian. He further submitted that his family would look down on his wife because of her ethnicity.
The Applicant told the Tribunal that he was in weekly contact by telephone with his mother. No evidence, other than the assertions of the Applicant was provided to the Tribunal to suggest that his family was upset by his marriage or the Applicant would be forced to separate from his wife. The Tribunal found in the absence of independent evidence that the Applicant’s family did not object to the Applicant’s marriage.
The Tribunal also found, relying on the case of MMM v Minister for Immigration and Multicultural Affairs,[2] that familial rejection for any reason is not the kind of detriment against which the state can be expected to provide protection. It followed from this finding that there was not a real risk that the Applicant would suffer serious harm arising from his marriage for any reason mentioned in s 5J(1)(a) if he were to return to Malaysia.
[2] [1998] FCA 1664; 90 FCR 324.
The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia that there is a real and significant risk of harm as contemplated by the complementary protection criteria under s 36(2)(aa).
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 13 July 2018, within 35 days of the date of the Tribunal’s Decision as prescribed by s 477 of the Migration Act.
On 27 November 2019 Orders were made by consent for the filing of material. The Applicant did not file material in accordance with those Orders.
The Applicant relied upon the following documents:
(a)The Application filed 13 July 2018; and
(a)The Affidavit of the Applicant, annexing the Tribunal’s Decision.
The Minister relied upon:
(a)The Response filed 15 April 2019;
(b)The Minister’s submissions filed 13 November 2024; and
(c)The list of authorities.
At the Hearing the Applicant had, at the bar table, a copy of the Court Book filed by the Minister in this matter and a copy of the Minister’s submissions. I invited the Applicant to make submissions regarding his Application by asking him what mistakes the Tribunal made when it decided to refuse to grant the Visa. The Applicant did not make submissions but after an invitation from me the Applicant adopted the grounds of review set out in his Application. The Applicant also declined, when given the opportunity to do so, to make submissions in reply.
The Applicant’s six grounds of review (Grounds of Review) are:
1.The Administrative Appeals Tribunal (the Tribunal) failed to take into account the threat my family will physically harm me if I return to Malaysia. (Ground One)
2.The Tribunal did not properly understand the degree of animosity my family feel towards me because I have married a woman of Indonesian ethnic origin. (Ground Two)
3.I believe the Malaysian authorities will not support us. Particularly if my family forces me to get divorced. (Ground Three)
4.I believe the Tribunal did not properly understand the nature of the debt burden my family is placing on me. If I return to Malaysia I will be forced to make payment to my family my number one priority and I wont be able to support my wife and child. (Ground Four)
5.My child will face discrimination as an ethnic Indonesian in Malaysia. My wife has already experienced serious violence from Malaysian nationalists. (Ground Five)
6.I believe the translator provided by the AAT was discriminatory and put pressure on me to answer questions that I wasn't comfortable to answer. (Ground Six)
In bold and italicised added. Otherwise as written.
CONSIDERATION
Ground One - The Administrative Appeals Tribunal (the Tribunal) failed to take into account the threat my family will physically harm me if I return to Malaysia.
It was the Applicant’s contention in Ground One that the Tribunal failed to take into account the Applicant’s claims that his family would physically harm him if he returned to Malaysia.
It was submitted by Counsel for the Minister that the Tribunal was only required to consider claims that are substantially and clearly articulated and that no such claim was made by the Applicant in regard to a fear of harm in the form of physical harm from his family. I was taken to the Applicant’s Visa Application where he set out his initial claims. It was submitted by Counsel that although the claims made by the Applicant refer to mistreatment, these claims read fairly and in the context of claim made before the Delegate and the Tribunal, the mistreatment referred to by the Applicant refers to ostracism or isolation by the family and not physical mistreatment. I was also taken to the relevant paragraphs of the Delegate’s Decision and Tribunal’s Decision.
I agree with the submissions of Counsel for the Minister that the Applicant’s claim involved a claim of rejection or ostracism by his family and that such an understanding did not involve an error. Gound One must be dismissed.
Ground Two - The Tribunal did not properly understand the degree of animosity my family feel towards me because I have married a woman of Indonesian ethnic origin.
Ground Two was characterised by Counsel for the Minister as an attempt at merits review.
It was submitted that Ground Two does not show an error in the way that the Tribunal reasoned. The Tribunal found that the Applicant had weekly contact with his mother, that there was an absence of independent evidence of his family being upset with his marriage and by corollary that the Applicant’s family did not object to his marriage. I agree with the submission that the conclusion reached by the Tribunal was both logical and rational based on the evidence before it. I dismiss Ground Two.
Ground Three - I believe the Malaysian authorities will not support us. Particularly if my family forces me to get divorced.
It was submitted that Ground Three was also an attempt by the Applicant to seek merits review. With respect to this ground, Counsel for the Minister contended that the Applicant sought to re-argue the case that was argued before the Tribunal. I was also directed to the Tribunal’s Decision at paragraph [49] where the Tribunal found that familial rejection of any kind is not a detriment against which the state could be expected to provide protection. I accept these submissions and dismiss Ground Three.
Ground Four - I believe the Tribunal did not properly understand the nature of the debt burden my family is placing on me. If I return to Malaysia I will be forced to make payment to my family my number one priority and I wont be able to support my wife and child.
By Ground Four the Applicant, it was submitted by the Minister, was again seeking merits review in that the Applicant disagreed with the Tribunal’s reasoning.
Firstly, the Tribunal at paragraph [41] stated that it did not accept the Applicant’s evidence in relation to the loan and found that a loan did not exist. Secondly at paragraph [42] the Tribunal found that even if there was such a loan the Applicant was not personally liable for it and that he shared the repayments with his brothers. Thirdly, at paragraph [43] the Tribunal did not accept that the Applicant would be unable to find work in Malaysia. Based on these findings the Tribunal concluded that the Applicant would not suffer serious harm in the ability to subsist in Malaysia.
The Applicant is unable to establish a jurisdictional error on this ground. Ground Four must be dismissed.
Ground Five - My child will face discrimination as an ethnic Indonesian in Malaysia. My wife has already experienced serious violence from Malaysian nationalists.
The Minister submitted that this is an entirely new claim. A claim to the effect of Ground Five was not before either the Delegate or the Tribunal. In circumstances where the claim was not before the Tribunal, the Tribunal could not have fallen into error by failing to consider such a claim. Ground Five must be dismissed.
Ground Six - I believe the translator provided by the AAT was discriminatory and put pressure on me to answer questions that I wasn't comfortable to answer.
It was submitted by Counsel for the Minister that there are circumstances where errors of interpretation might result in a failure to accord procedural fairness but this not the case here. There was no evidence to substantiate anything that was alleged on that ground at all. There was no transcript nor was there any evidence that might reveal what might be in fact wrong with the transcript if it had been produced. I accept this submission and dismiss Ground Six.
Paragraph 54 of the Tribunal Decision
Counsel for the Minister submitted that paragraph [51] of the Tribunal’s Decision constituted an “expressly and in the alternative finding”. Counsel described the finding in paragraph [51] in the following manner:
"I haven't found there's a real chance of harm, but in any event, the harm doesn't relate to everywhere in Malaysia, there's a place that he could go to where the harm doesn't arise."[3]
[3] Transcript P10:L5-7.
It was submitted that this characterisation of paragraph [51] is significant as it is the reason why there is no jurisdictional error. It was further submitted that any error that followed from the alternative basis is immaterial because all of the discussion was “in the alternative and not dispositive”.
I was taken to paragraph [52] of the Tribunal’s Decision where the Tribunal stated:
[…] Unlike the relocation principle as developed under the Refugee Convention, there is no scope for a decision-maker to consider the reasonableness of requiring a person to move to an area that is free from the chance of persecution. […]
It was submitted that this paragraph was extensively footnoted by the Tribunal to “make good” the proposition that under the amendments to the Migration Act there was no longer a requirement to consider the reasonableness of relocation. I was then taken to paragraph [53] which it was submitted follows the discussion at paragraph [52]. The difficulty, it was submitted, arises in the first sentence of paragraph [54] of the Tribunal’s decision:
Therefore, for the purposes of s.36(2)(a) in determining whether the applicant is a person in respect of whom Australia has protection obligations, it is necessary to consider whether the applicant might reasonably relocate to or remain in a region within their country free of the risk of persecution. […]
Emphasis added.
Counsel submitted that paragraph [54] contradicts the earlier statement of the Tribunal in paragraph [52]. It was further submitted that paragraph [54] contains an editing error. I observed that there were several “editing” errors in the Tribunal decision including the varied use of pronouns. The Tribunal in paragraph [55] does not go on to consider reasonableness in relocation.
It was submitted by Counsel for the Minister that the first sentence in paragraph [54] is an error but not a jurisdictional error for two reasons: one, that an inference should be drawn that the Tribunal was not careful went editing its decision, and two, that the Tribunal did not proceed on a misapplication or misunderstanding of the law.
I agree that the Tribunal engaged in careless editing of the decision, which is unsatisfactory, but it did not misapply or misunderstand the law. Further the Tribunal had already found that dispositively there was no real risk of harm and that the matters discussed in paragraph [52] to [55] of the Tribunal’s Decision were an alternative finding. In all these circumstances I find that the error identified by the Minister in paragraph [54] did not constitute a jurisdictional error.
CONCLUSION
The Application must be dismissed.
The Minister sought costs fixed in the scale amount, as prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Minister’s costs in the sum of $8,371.30.
Orders will be made accordingly.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 19 December 2024
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