DRR18 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1113

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DRR18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1113

File number(s):

MLG 2060 of 2018

Judgment of:

JUDGE GOSTENCNIK

Date of judgment:

31 October 2024

Catchwords:

 MIGRATION – application for protection visa – review of the decision of the Administrative Appeals Tribunal – whether the Tribunal properly considered the Applicant’s claim to fear harm on account of her status as a single woman – whether the Tribunal properly considered the Applicant’s claim to fear harm on account of her status as single mother – no jurisdictional error established – application for review dismissed.  

Legislation:

Migration Act 1958 (Cth), ss 5AAA, 36(2)(a), 36(2)(aa)

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

AWT15 v Minister for Immigration and Border Protection [2017] FCA 512

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Kasupene v Minister for Immigration and Citizenship[2008] FCA 1609

MZXLB v Minister for Immigration & Citizenship[2007] FCA 1588 

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

Re Minister for Immigration and Multicultural and Indigenous Affairs;Ex parte Applicants S134/2002 [2003] HCA 1

SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 

SGBB v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 709

SZUTM v Minister for Immigration and Border Protection [2016] FCA 45

Division

Division 2 General Federal Law

Number of paragraphs

30

Date of last submission/s:

25 September 2024

Date of hearing:  

11 September 2024

Place

Melbourne

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Ms Griffiths-Mark

Solicitor for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 2060 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2  

BETWEEN:

DRR18
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE GOSTENCNIK
DATE OF ORDER:	31 OCTOBER 2024

THE COURT ORDERS THAT:

1.Pursuant to Item 10 Sch 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, the “Administrative Review Tribunal” be substituted for “Administrative Appeals Tribunal” as the second respondent.

2.The application filed on 17 July 2018 is dismissed.

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 GOSTENCNIK

BACKGROUND

1. The applicant is a Malaysian citizen who arrived in Australia on 6 April 2016: Court Book (CB)24.  On 3 August 2016, the applicant applied for a Protection (subclass 866) visa claiming that she feared harm because of her unwitting involvement in a recruitment scam.

2. The applicant alleged that she worked as a freelance recruiter in Singapore but many job applicants said to be victims of the alleged recruitment scam and with whom she dealt were Malaysian. The applicant alleged that the victims would complete an application and pay a fee. The applicant passed on their applications to her boss, but she soon learned that her boss was stealing their fees. The applicant claimed that although the Singaporean police had apprehended her boss, many victims had approached the applicant asking for a refund. The applicant claimed that she was threatened by some of the victims. Despite reporting the threats to police, the applicant claimed the victims were not concerned and said they would find the applicant. The applicant attached untranslated Malaysian police reports to her visa application form. The applicant said she was worried about her safety and so she came to Australia: CB36-CB38, CB46-CB47.

3. A delegate of the (then) Minister for Immigration and Border Protection notified the applicant on 25 October 2016 that her application for a protection visa had been refused. The delegate concluded the applicant was not a person in respect of whom Australia had protection obligations under ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act): CB51-CB62. By application to the Administrative Appeals Tribunal (Tribunal) made on 30 October 2016, the applicant applied for review of the delegate’s decision: CB63-CB64. The Tribunal acknowledged the application in correspondence dated 2 November 2016: CB79-CB80. The Tribunal invited the applicant by correspondence dated 28 September 2017 to appear before it at a hearing on 23 November 2017 to give evidence and present arguments: CB87-CB92. The correspondence also asked the applicant to complete and return an enclosed 'Response to hearing invitation – MR Division' form and to attach any additional or new information which the applicant wanted the Tribunal to consider. The correspondence also alerted the applicant of the requirement that any documents or written arguments sent to the Tribunal should be in English or be translated by a NAATI accredited translator.

4. The applicant attended the scheduled Tribunal hearing where she gave evidence and presented arguments and was assisted in that endeavour by a Malay interpreter: CB97.

5. On 20 June 2018, the Tribunal notified the applicant of its decision to affirm the decision under review: CB104-107 and provided the applicant with a copy of its Statement of Decision and Reasons (Decision): CB108-CB119.

   TRIBUNAL’S DECISION

6. After setting out at [1]-[8] of its Decision, some introductory matters, the protection visa criteria and relevant considerations, the Tribunal turned to consider the applicant’s claims. At [10] the Tribunal summarised the applicant’s written claims set out in her protection visa application. The Tribunal noted at [11] the applicant maintained these claims at the hearing and provided elaboration. At [12]-[32] the Tribunal recounted the applicant’s oral evidence given during the hearing. At [33]-[35] the Tribunal considered country information contained in the 2016 Malaysia Department of Foreign Affairs and Trade (DFAT) country report relating to the Malaysian police force. The Tribunal noted at [35] there was nothing in the evidence to suggest the Malaysian authorities would fail to protect her due to her race, nationality, religion, political opinion or membership of a particular social group. Earlier at [28] the Tribunal recorded that this information was put to the applicant and that the applicant said that she was not aware of any corruption with the police in this case.

7. At [36] of the Decision, the Tribunal noted the applicant provided documents purporting to be police reports, but which were not translated. Accordingly, the Tribunal reasoned that as it could not understand the documents, the documents would be given no weight. At [37]-[40] the Tribunal discussed concerns with some of the applicant’s evidence, namely:

   (a)The applicant’s inability to identify her Singaporean boss other than as “Ramesh”.  The Tribunal expressed difficulty accepting the applicant could not recall Ramesh’s full name or names. This was because the applicant claimed to have met Ramesh many times and worked for him. Accordingly, the Tribunal concluded the applicant did not work for Ramesh and that Ramesh was not a genuine person;

   (b)That the relatively small sums said to be owed to victims of the scam, could lead to death threats directed to the applicant. The Tribunal did not accept that a death threat was made in the situation described;

   (c)Information about the applicant going to the police, the number and identity of police with whom the applicant claimed to have interacted was conflicting. Consequently, the Tribunal did not accept the applicant’s evidence that there was an Inspector Wong who was said to oversee the matter. The Tribunal found that the applicant had never met an Inspector Wong or contacted him, and it did not accept the applicant went to police at all.

8. At [43] of the Decision the Tribunal noted that the applicant could not explain why she was safe in Australia but not in other states of Malaysia. Nor could she explain why the whole of Malaysia was for her unsafe. The Tribunal reasoned that the applicant’s evidence on this topic was vague and concluded the applicant wanted to live in Australia for reasons other than those she was claiming. In the same paragraph, the Tribunal also records the applicant provided very little information about when the incidents, the subject of her claims, had occurred and that there was little or negligible written evidence to support the applicant's claims. Consequently, the Tribunal rejected the totality of the applicant’s claims.

9. At [44]-[46] of the Decision, the Tribunal concluded that if the applicant returned to Malaysia now or in the foreseeable future, there was no real chance the applicant:

   (1)would be harmed by persons owed money from her former employer or anyone else or for any reason connected to these claims (claims which were rejected);

   (2)would suffer serious harm for reasons claimed;

   (3)would be harmed for any reason.

10. Consequently, the Tribunal was not satisfied that the applicant was a refugee and therefore a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act: at [50]. Nor was the Tribunal satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa): at [51].

    APPLICANT’S REVIEW GROUNDS

11. By application made on 17 July 2018, the applicant applied to the (then) Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. The singular review ground with particulars contained in the application is as follows:

    The Tribunal failed to consider an integer of the applicant's claims which arose squarely on the material before it, namely her claims to fear harm on account of her status as a single woman.

    Particulars

    1.1      The applicant appeared before the Tribunal unrepresented and no previous representative had been appointed in respect of her Protection visa application to the Department of Home Affairs;

    1.2      As such, the applicant did not and could not have been expected to advance her claims in an expert fashion;

    1.3      During the course of the hearing, the applicant stated that she feared harm in Malaysia on account of her status as a single woman and single mother - these claims are repeated at para [19] of the decision record;

    1.4      The Tribunal failed to consider whether the applicant faced a real chance (or real risk) of harm on that basis.

    CONSIDERATION

12. As the applicant did not prepare the review ground, she did not appear to comprehend it. The ground contends in substance that the Tribunal did not consider the applicant’s claim that she feared harm because she was a single woman (and mother), that this claim was substantial and clearly articulated or raised, or at least clearly emerged or raised from the material before the Tribunal. In other words, the applicant contends the Tribunal did not consider her claim to a protection visa on the basis or on one of the bases she advanced. If correct, that would amount to a constructive failure to exercise jurisdiction, and so, the Tribunal’s decision would be attended by jurisdictional error: Dranichnikov v Minister for Immigration & Multicultural Affairs[2003] HCA 26; 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although the Tribunal is not obliged to consider claims that have not been made: Re Minister for Immigration and Multicultural and Indigenous Affairs;Ex parte Applicants S134/2002 [2003] HCA 1 at [32]; SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 at [16], whether there was jurisdictional error of the kind alleged will ultimately depend on whether the case put by the applicant before the Tribunal sufficiently raised the relevant issue identified in the review ground so that the Tribunal should have dealt with it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [60]; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 709;  199 ALR 364 at [18]. Put another way, the question will be whether a claim, though not articulated, clearly emerges, is squarely raised or is plain on the materials before the Tribunal: AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67]; NABE at [58] and[68]; SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; 241 FCR 214at [37].

13. A finding that such an unarticulated claim was not addressed by the Tribunal but should have been, is not one that will be made lightly and the fact that a claim “might” be seen to arise on the materials will not be enough: NABE at [68]. And while there is no precise standard for determining whether an unarticulated claim has been squarely raised: MZXLB v Minister for Immigration & Citizenship[2007] FCA 1588 at [14],  a court will be more willing to draw the line in favour of an unrepresented party: Kasupene v Minister for Immigration and Citizenship[2008] FCA 1609 at [21].

14. The applicant contends in her application that during her hearing before the Tribunal, she claimed she feared harm in Malaysia because of her status as a single woman and single mother. She points to [19] of the Decision in aide of her contention.

15. I do not accept that the Tribunal erred in the manner alleged.

16. The applicant’s protection visa application was before the Tribunal. That application set out the applicant’s claims. These were summarised by the Tribunal, as earlier noted, at [10]. Neither the Tribunal’s summary nor the full claims contained in the protection visa application mention the applicant’s status as a single woman and mother, much less that she feared harm by reason of that status.

17. At [19] the Tribunal recorded the applicant said, “she was a single mother and had a child and needed to save herself”. This statement is given in a context not in isolation and should be so understood. The context is recorded by the Tribunal at [17]-[32] of the Decision as follows:

    17. She then received a call that Ramesh was in detention in a Singaporean police station. The Singaporean police asked her and other workers to go over to Singapore. The Singapore police had been looking for Ramesh. All people who had given money to Ramesh knew that they had been defrauded. She described herself as an underling who had become a victim. The money was not with her and her colleagues and she had not taken the money. The applicant and other staff were threatened. The applicant said that there were 'threats to kill us'.

    18. The threat was it that if they could not get hold of her they would go after her family.

    19. There was a policeman who was a friend of hers who had told her to try and save herself. The applicant said she was a single mother and had a child and needed to save herself.

    20. The applicant later amended her evidence to there being two policemen who warned her.

    21. A friendly policeman had told her to get in contact with the police. She was given the name of an Inspector Wong. She never received a call back from him.

    22. A person asking for a job had been the one who had called her. He had wanted his money back. One person threatening her had identified himself as being named Kartik.

    23. When Kartik rang she did not know who he was, because he was one of many people in the scheme that numbered around about 90. These were all Malaysian people including Malay, Chinese and Indian Malaysians.

    24. The applicant said that she had been contacted by other people who were out of pocket, but they did not identify themselves. Her response was that the money that they had handed over was given straight to her boss and that she no longer held the money.

    25. The applicant said that she received other threats to be killed. She said she was contacted by approximately 30 people. Other friends were contacted as well whose names were Zailah, Afic and Surin. The applicant did not know where the three people were now located although they were friends. She said that she had run away and had not been in contact with them in Australia. She amended this evidence to say that Zailah had come Australia with her but had now returned to Malaysia and she had no other contact with Zailah.

    26. The applicant was asked whether anybody had come to her house in Malaysia. She said after she came to Australia someone came looking for her, that person was an Indian male. By that stage she had left Malaysia. She said that people came looking but she was no longer staying there in Malaysia. The applicant said that her sister had told her this information. The applicant said that the money owed to these people was 160 Singaporean dollars each. The applicant said that that this with the equivalent of 500 ringgit and it was something that parties were threatened to kill her over. The applicant said that she stayed in Malaysia for two to three weeks after the time of the first threat and then left. She said that she moved out of her sister's house and had gone to a friend's house in Kuala Lumpur. She said that within two weeks she could leave Kuala Lumpur. She had had no trouble in Kuala Lumpur. She said that she had not had any trouble even though some of the victims had come from Kuala Lumpur.

    27. The applicant was asked whether the victims would find her in Kuala Lumpur to which she replied that she was scared. The applicant was asked what the situation would be now and she replied that she was not sure. The applicant was asked whether the victims would find her in the foreseeable future. The applicant replied that they had her photo. The applicant was asked whether she could live in other parts of Malaysia an example Sarawak or Sabah. She denied that the Malaysia police could protect her.

    28. Country information about the higher professionalism of the Malaysian police force was put to the applicant under the 2016 Malaysia DFAT country report. The applicant said that Inspector Wong had never got back to her. The applicant added that she had visited the police station after making report but was told that Inspector Wong had other cases so 'please be patient'. The applicant is a Malay Muslim. The applicant said that she was not aware of corruption in this particular case with the police.

    29. The applicant did not provide written evidence of being threatened in Australia although WhatsApp the messages had been sent to her.

    30. The applicant said that she been on holiday with her friend Zialah to Thailand when Zailah was living in Australia. However, she had not heard from her since she departed Australia because they 'were not that close'.

    31. The applicant said that photographs of her have been distributed on WhatsApp - she had been told this by people threatening her. The applicant was asked whether the trouble had now been forgotten because some time had passed. The applicant replied that she was not sure.

    32. The applicant said she could not remember the date of when her sister had observed that people were looking for her in Malaysia.

18. As is evident from the above, the applicant claimed to be implicated by some job applicants in Ramesh’s recruitment fraud; she claimed she faced demands for repayment of monies defrauded; she claimed that she and some colleagues had been threatened by some of the job applicants, including threats to kill them; she claimed that threats to the effect that if the defrauded job applicants could not get hold of her they would go after her family; she claimed that a policeman friend told her to try and save herself. It is in this context that the applicant told the Tribunal that she was a single mother and had a child and needed to save herself. Plainly, the applicant claimed to be at risk of harm because of her perceived involvement in a fraudulent scheme by the defrauded job applicants not because she was a single woman and mother. The reference recorded at [19] provided context for the applicant’s reason for leaving Malaysia. That the applicant feared harm because she was a single woman and single mother does not emerge from [19] nor from any of the material before the Tribunal. That the applicant feared harm because she was single or had a child was not raised as an integer of her claim that she feared or was at risk of harm from persons who had been defrauded because of her perceived involvement in a fraudulent recruitment scheme. Nor is there a proper basis to conclude that the claim was evident on the established facts or that it clearly emerged, was squarely raised or was plain on the material before the Tribunal.

1. There was no evidence before the Tribunal, much less any evident claim, that the applicant had been threatened because of her status as a single woman or single mother. Such evidence as there was about threats, was constituted by the applicant’s claims that she had been threatened, including threats that she would be killed, by persons who had been victims of the recruitment fraud. The fear of harm claimed by the applicant was a fear of harm by persons who had been defrauded because of their perception of her involvement in the fraudulent recruitment scheme.

2. For completeness, the first respondent submitted in the alternative that the Tribunal was not required to specifically deal with any purported claim of harm because the applicant was a single woman and mother, as it was subsumed in findings of greater generality which rendered that claim irrelevant. The first respondent contended that as the Tribunal rejected the applicant's claims in total, including that the claimed fraudster Ramesh existed, it rejected the "factual premise upon which" the unarticulated claim was said to arise.

3. It is accepted that it may be unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47]. But where an issue, which would be dispositive of the Tribunal's review of the delegate's decision, is raised by the evidence adduced and contentions made by the applicant, a failure to deal with it in the Tribunal’s published reasons may raise a strong inference that it has been overlooked: WAEE at [47].

4. As I have already concluded, a claim of a fear of harm because the applicant was a single woman and mother was neither raised directly nor does such a claim emerge from the evidence. But if such a claim had been raised by the applicant or emerged from the evidence, I do not accept that such a claim was subsumed in findings of greater generality rendering that claim irrelevant. Nor do I accept that the factual premise upon which the unarticulated claim, if it existed and was said to arise, was rejected because the Tribunal rejected all the applicant’s claims. If the applicant had claimed a fear of harm because the applicant was a single woman and mother or such a claim emerged from the evidence, that claim is not obviously linked to, nor does it obviously arise from, the claimed fear of harm by persons who had been defrauded because of their perception of her involvement in the fraudulent recruitment scheme. Disposition and rejection of the latter does not obviously also dispose of the former. But given my earlier finding. the issue raised by the first respondent in his alternative submission does not here arise.

5. It is evident from a review of the Decision that the Tribunal made several adverse credibility findings or observations about the applicant’s evidence: See for example Decision at [37], [38], [39], [40], [41] and [42]. During the hearing I had raised with the first respondent whether the applicant was on notice by the Tribunal that the Tribunal might make adverse credibility findings, and whether the applicant was given an opportunity to address that issue, and I made orders allowing the parties to file and serve further submissions addressing the question.  The first respondent filed and served further submissions and an affidavit annexing the audio recording of the hearing before the Tribunal. The applicant did not file nor serve any further material. In the end I have not needed to resort to the affidavit and I am satisfied on a review of the Decision and the CB that the applicant was on notice and had the opportunity to address the Tribunal’s credibility concerns.

6. The Tribunal gave the applicant an opportunity to give evidence and present arguments about the dispositive issues under review. The Tribunal found that the applicant did not face a real risk of significant harm because it did not accept the applicant’s claims based on credibility. It seems clear from the Decision which records some of the Tribunal’s questions, that the Tribunal was troubled by some of the applicant’s claims. Questions were directed to the identity of Ramesh: Decision at [37]; concerns were raised about the veracity of the applicant’s claim that she had received death threats over $160 Singaporean dollars debt: Decision at [38]; concerns were raised about conflicting information relating to the applicant’s reporting to police: Decision at [39]; and, the vagueness of her claimed WhatsApp threats was also raised: Decision at [41].

7. It is these concerns, canvassed with the applicant during the hearing, that led the Tribunal to make adverse credibility findings and consequently to not accept her evidence about these matters. The applicant was given the opportunity to explain or respond to the concerns raised. It was these conclusions together with the lack of any other evidence to support the applicant’s claims which led the Tribunal to conclude that “there is no real chance that the applicant [would] be harmed by persons owed money from her former employer or anyone else or for any reason connected to these claims which [the Tribunal] rejected in total, if she returns to Malaysia, now or in the reasonably foreseeable future”: Decision at [44].

8. Ultimately, the Tribunal, in migration matters acts, as an inquisitorial body, and although it is required to review afresh the applicant’s application for a visa, it was not bound to uncritically accept the applicant’s claims: s 5AAA of the Act; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]; ; Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 535; 52 FCR 437 at 451.

9. I accept, as the first respondent contends, the exchanges between the applicant and the Tribunal as recounted in the Decision, make it clear that the veracity of the applicant’s evidence about her claims was a “live issue” and perhaps the evidence “did not stack up”: See SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002 at [36] and SZQDI v Minister for Immigration and Citizenship (2012) 207 FCR 106 at [61]. No jurisdictional error is thereby disclosed.

10. Finally, as the applicant was unrepresented before the Court, I have reviewed the Decision and the material in the Court Book filed by the first respondent with an eye to identifying jurisdictional error beyond merely dealing with those the applicant advanced, but I have not identified any arguable case of jurisdictional error.

11. For these reasons, the application for judicial review will be dismissed.

12. I will hear the parties on costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

Associate:

Dated: 31 October 2024.