DUW18 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 299

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DUW18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 299

File number(s):

MLG 2154 of 2018

Judgment of:

JUDGE BINGHAM

Date of judgment:

6 March 2025

Catchwords:

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – fear of harm as Berish member and from Malaysian authorities – lack of particulars – grounds of review not made out – application dismissed with costs

Legislation:

Migration Act 1958 (Cth) ss 5J and 36

Cases cited:

Minister for Immigration & Ethnic Affairs v Wu Shang Liang [1996] HCA 6; (1996) 185 CLR 259 at 272

Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142

Division:

Division 2 General Federal Law

Number of paragraphs:

43

Date of last submissions:

23 January 2025

Date of hearing:

23 January 2025

Place:

Melbourne

The Applicant:

Appeared in person

Solicitor for the Respondents:

Sparke Helmore

ORDERS

MLG 2154 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DUW18

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE BINGHAM
DATE OF ORDER:	6 MARCH 2025

THE COURT ORDERS THAT:

1.The Application filed 24 July 2018 be dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.

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:

1. By an application filed in this Court on 24 July 2018 (Application) the Applicant seeks judicial review of the decision of the then Administrative Appeals Tribunal (Tribunal), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).

2. On 2 July 2018 the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Class XA) (subclass 866) Visa (Visa) (Tribunal’s Decision).

   BACKGROUND

3. The Applicant is a Malaysian national of Muslim faith from the state of Kedah. He arrived in Australia on 26 April 2016 as the holder of an electronic visitor tourist visa.

   Visa Application

4. The Applicant applied for the Visa on 21 July 2016. The Applicant applied for the Visa based on his fear of harm as a Berish member and political opponent.

5. In his Visa application, the Applicant made the following protection claims:

   (a)The Applicant decided to join the Bersih movement after the organisers offered financial incentives for any Malaysian who would protest.

   (b)The Applicant left Malaysia after the Minister for Home Affairs at the relevant time said that Malaysians who are unhappy with the country’s political system should leave Malaysia. These statements were made after a series of street demonstrations led by Bersih members that were scheduled for 29 and 30 August 2015 in Kuala Lumpur. ]

   (c)The Applicant claimed that the police will place him in jail should he be returned to Malaysia.

   Relevant statutory requirements of the Visa

6. Pursuant to s 36(1A) of the Migration Act an Applicant for a protection visa must satisfy both of the criterion in sub-sections (1B) and (1C) and at least one of the criteria in s 36(2). At the relevant time, the section was put in the following terms:

   (1A)     An applicant for a protection visa must satisfy:

   (a)       both of the criteria in subsections (1B) and (1C); and

   (b)       at least one of the criteria in subsection (2).

   (1B)A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

   (1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

   (a)       is a danger to Australia’s security; or

   (b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

   […]

7. Section 36(2) provided the following:

   (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; or

   (b)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

8. Section 36(2A) provided that a non-citizen will suffer significant harm if:

   (a)    the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)    the death penalty will be carried out on the non‑citizen; or

   (c)    the non‑citizen will be subjected to torture; or

   (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)    the non‑citizen will be subjected to degrading treatment or punishment.

9. Section 5J dealt with the meaning of ‘well-founded fear of persecution’:

   (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.

   Note:For membership of a particular social group, see sections 5K and 5L.

   (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

10. The Delegate considered Australia’s protection obligations under s 36(2)(a), whether the Applicant had a well-founded fear of persecution, and the complementary protection criterion in s 36(2)(aa). The Delegate considered a number of country information reports to inform their decision. The Delegate was not satisfied that the Applicant would suffer harm and refused to grant the Visa (Delegate’s Decision).

11. On 4 October 2016 the Applicant was notified of the Delegate’s Decision dated 3 October 2016.

    Application for review to the Tribunal

12. The Applicant lodged an application for review in the Tribunal on 30 October 2016. A letter acknowledging the application was sent to the Applicant the following day on 31 October 2016.

13. An invitation to attend a hearing on 18 December 2017 was sent to the Applicant from the Tribunal on 9 November 2017. The invitation requested that the Applicant complete the attached form and submit any new information that the Applicant wished to be considered by the Tribunal.

14. The Tribunal Hearing was held on 18 December 2017. The Applicant appeared self-represented with the assistance of an interpreter.

    The Tribunal’s Decision

15. On 2 July 2018 the Applicant was notified of the Tribunal’s Decision to affirm the Delegate’s Decision.

16. The Tribunal found that the Applicant did not meet the refugee criterion set out in s 36(2)(a), did not have a well-founded fear of persecution as defined in s 5J. The Tribunal was not satisfied that the Applicant is a person in respect of whom Australia owes protection obligations pursuant to s 36(2)(aa) of the Act.

    PROCEEDINGS BEFORE THE COURT

17. The Application was filed in this Court on 24 July 2018, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.

18. On 11 December 2019 Orders were made for filing of material. The Applicant has not filed material in accordance with these Orders.

19. The matter was called over by a Registrar on 30 November 2023. The Applicant appeared via telephone with the assistance of an interpreter and confirmed he had received a copy of the Court Book.

20. This matter was heard on 23 January 2024 and proceeded in person (Hearing). The Applicant appeared with the assistance of a Malay interpreter. A solicitor appeared for the Minister. At the commencement of the Hearing I asked both the Interpreter and the Applicant whether they could understand each other. It was confirmed that they could. I asked whether the Applicant was willing to proceed with the interpreter and the Applicant said yes. I directed the interpreter to interpret all that was said in the proceeding. The advocate for the Minister also spoke in short sentences to allow for effective interpretation. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.

21. The Applicant relied upon the following documents:

    (a)The Application filed 27 July 2018; and

    (b)The Affidavit of the Applicant sworn and filed on 24 July 2018.

22. At the Hearing the Applicant was granted leave to amend his Application to include an order for mandamus. This was not opposed by the Minister.

23. The Minister relied upon:

    (a)The Response filed 24 August 2018; and

    (b)The Outline of Submissions filed 6 January 2025.

24. The Court Book filed on 7 January 2020 was tendered by the Minister.

25. The Applicant relied on three grounds of review reproduced verbatim below (Grounds of Review):

    I am disatisfied with the presentatian of the language translator represating me of the day because answer it is too short not accurate (Ground 1)

    Everting transmitted in sosial media is incorrect and contrary to the actual situation I feel there is not guarantee of my safety (Ground 2)

    During the hearing session I was given a chance to talk but I was under pressure and im not really focus to answer the question (Ground 3)

    Bold and italics added. Otherwise as written

26. At the Hearing I asked the Applicant to tell me what mistakes he said the Tribunal had made in making the Tribunal’s Decision. After a period of silence, I asked the Applicant if he wished to rely on his grounds of review to which he answered yes.

    CONSIDERATION

    Ground 1 – I am dissatisfied with the presentatian of language translator representing of the day because answer is too short and not accurate.

27. The Applicant in this ground asserts that the language translator’s answers were too short and not accurate.

28. The Minister submitted that the Applicant must show one of the following:

    (a)That the standard of interpretation was so inadequate that the Applicant was prevented from giving evidence to the Tribunal; or

    (b)The errors were material to a conclusion of the Tribunal which was adverse to the Applicant.[1]

    [1] SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142, [64]-[69].

29. The Applicant did not file a transcript of the Tribunal Hearing or provide any particulars as to what errors the interpreter had made. The Applicant has not specified or identified any specific errors that the interpreter made. There is nothing in the Tribunal’s Decision that indicates that the Applicant raised the issue of inadequate interpretation at the Tribunal Hearing.

30. I agree with the Minister’s submission that there is nothing before me that would allow me to conclude that there were deficiencies in the interpretation, or even if there were deficiencies, that they were not of a level that prevented the Applicant from giving evidence. Nor is there any indication that deficiencies led to a conclusion that was adverse to the applicant or led to “material unfairness”, or that the Applicant was denied a “real and meaningful opportunity” to be heard.

31. The Applicant has not made out Ground 1. It must be dismissed.

    Ground 2 – Everting transmitted in sosial media is in correct and contrary to actual situation I feel there is not a guarantee of my safety

32. It was submitted that the Minister understood this ground to relate to the social media or other media reports on the Bersih. The Applicant was given an opportunity to reply to the submission of the Minister and did not take the opportunity to correct that understanding.

33. The Minister submitted that the assessment of country information is a matter for the Tribunal.[2] The Tribunal’s Decision shows that the country information referred to in the Tribunal’s Decision was discussed with the Applicant at the Tribunal Hearing.

    [2] Minister for Immigration & Ethnic Affairs v Wu Shang Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.

34. The Applicant did not place any country information of their own before the Tribunal.

35. I agree with the submission of the Minister that insofar as the Applicant disputes the inclusion and assessment of country information no error is evident on the material before me. Ground 2 must be dismissed.

    Ground 3 – During the hearing session I was given a chance to talk but I was under pressure and im not really focus to answer the question

36. The Minister submitted that the Applicant feeling under pressure does not necessarily mean that the Applicant was denied procedural fairness.

37. It was also submitted that there was no evidence before the Tribunal that the Applicant had a medical condition which would make them ‘entirely unfit’ to answer questions from the Tribunal or otherwise participate in the proceeding.[3]

    [3] Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41.

38. The Applicant has failed to show that he was unfit to participate in the Tribunal Hearing and that by proceeding the Tribunal erred.

39. The Minister further submitted that there is no suggestion of apprehended bias.

40. There is nothing before me that would allow me to conclude that Ground 3 constituted a jurisdictional error on the part of the Tribunal. Gound 3 must be dismissed.

    CONCLUSION

41. No jurisdictional error has been identified. I dismiss the Application.

42. The Minister sought costs fixed in the amount of $5,000. This is below the amount 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). I will order that Applicant pay the Minister’s costs in the sum of $5,000.

43. Orders will be made accordingly.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.

Associate:

Dated:       6 March 2025