Duy17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 492

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DUY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 492

File number(s):	MLG 1849 of 2017
Judgment of:	JUDGE YOUNG
Date of judgment:	9 June 2022
Catchwords:	MIGRATION - application for judicial review of decision of the Administrative Appeals Tribunal - where the applicants claim well-founded fear of persecution and significant harm - where the Tribunal accepted the circumstances of the applicants but did not consider they would amount to significant harm - jurisdictional error not made out - application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 36(2A), 424A, 424AA
Division:	Division 2 General Federal Law
Number of paragraphs:	15
Date of hearing:	9 June 2022
Place:	Darwin
The Applicant:	Appearing on his own behalf
Solicitor for the Respondents:	Ms Richardson of Sparke Helmore

ORDERS

MLG 1849 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DUY17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	9 JUNE 2022

THE COURT ORDERS THAT:

1.The name of the Minister for Immigration and Border Protection be amended to the Minister for Immigration, Citizenship and Multicultural Affairs.

2.The Application filed 24 August 2017 be dismissed.

3.The Applicant pay the Respondent’s costs fixed in the sum of $2,500.00.

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
Ex Tempore

JUDGE YOUNG

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 31 July 2017 affirming a decision of the delegate made on 22 March 2016 to refuse protection visas to the applicants, who are husband and wife. 

2. The applicants are citizens of Malaysia. Sometime in 2013 or before, they began a relationship.  Their families on both sides disapproved of the relationship.  The male applicant (“the Husband”) was somewhat younger than the female applicant (“the Wife”) by some five years and there seemed to be a disparity in educational levels, which the wife’s family in particular disapproved of.  A child was born to the applicants in 2013.  Their son was born outside of marriage, which they say will lead or has led to societal disapproval in Malaysia.  This is not in dispute. Nevertheless, the applicants were married in September 2014 over the opposition of their respective families. 

3. In 2015, the Husband came to Australia, and later in 2015 the Wife joined him with their child.  Their claims are as follows:

   (1)to have well-founded fear of persecution because of fear of hostility and disapproval from their families; and

   (2)fear of significant harm in relation to their son. As he was born outside of a marriage there would be a societal disapproval and stigma affecting the child and the applicants. 

4. The Tribunal found both applicants to be credible and sincere.  However, the Tribunal was not satisfied that in relation to the two bases of claim, there appeared to be any basis for that fear.  The Tribunal accepted there was hostility, disapproval and a breakdown in familial relationships, however there was no indication of anything that would amount to significant harm. 

5. In relation to the social stigma attached to the fact that the parties’ son was born outside of a marriage, the Tribunal accepted that at the time of his birth there was such a stigma, having regard to country information. This stigma was specifically related to the inability of a child in those circumstances to take the name of his father, which would not be countenanced by the Malaysian authorities responsible for the registration of births. 

6. It was said, and the Tribunal accepted, that according to country information, prior to 2017 a child in such a circumstance would be ascribed a relatively arbitrary surname.  There was mention of “Abdullah” as a surname that would be arbitrarily ascribed.  The applicants said that there were other names that would be arbitrarily ascribed for such a child. In any event, the applicants said where the surname of the child was not the same as the father, this would lead to the easy identification of that child having been born out of a marriage, and consequent stigma and discrimination applied to that child. 

7. The Tribunal, at paragraph [40] of the decision, referred to a decision in a superior Court in Malaysia, which is described in the decision as the Court of Appeal. This is presumably an English translation of the relevant Malaysian name for the Court. A reported decision of that Court had, in essence, concluded that the previous course adopted by the authorities in relation to the registration of names of children born outside marriage was not justified, and the law was effectively changed by that decision.  The Tribunal was satisfied on the basis of the country information that the stigma likely to flow from having a child such as the applicants’ son, with a different surname to the child’s father, was no longer likely to apply. The Tribunal was therefore not satisfied that was likely to be a source of significant harm.

8. In the application before me, I invited the applicants to choose whether they wished to make submissions in English or Malay, there being a telephone interpreter available.  It appears that both applicants have basic English. If there was something they did not understand or they wished to express in Malay, I said they could use the telephone interpreter.  They told me that they would adopt that latter course but submissions were made to me in English without recourse to the interpreter. 

9. I told the applicants that my role was to review the decision of the Tribunal for jurisdictional error, not to re-hear the matter. I pointed the applicants to the grounds of the application in their respective applications, which appear to be substantially the same or identical, and asked them if they wished to address me about those grounds.  The Wife, who made the substantial submissions, did not refer to those grounds.  The Wife told me that both prior to the decision of the Tribunal and after the decision of the Tribunal in 2017, she had inquired of the Malaysian authorities about whether it was possible to register their son’s name using his father’s surname. She said that she spoke to personnel from the relevant department on multiple occasions in 2017 and was told that she could not.

10. I asked the Wife whether she had sought legal advice in Malaysia about the matter she raised and she told me she had not.  There is no information before me beyond the bare assertion made by the Wife that there was a significant factual error made by the Tribunal in relation to that point.  I therefore have nothing before me to indicate anything other than that the country information was properly referred to by the Tribunal, and that the country information appeared to be reliable and was information that the Tribunal could rely upon.  There is nothing before me which indicates any error in relation to that material, and consequently, I am not satisfied that there is any evidence of error, still less jurisdictional error, in relation to that issue.

11. In relation to the grounds of review set out in the application, it was said at ground (1):

    The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.  The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her return to Malaysia for being married without family consent. 

    I do not accept that is the case.  The evidence was clear enough.  The Tribunal accepted both applicants as credible and accepted what they said.  However, what the applicant said did not, on any view, amount to significant harm as defined in the legislation and therefore could not give rise to a well-founded fear of persecution. 

12. In relation to ground (2) it was said:

    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived at in accordance with the provisions of the Migration Act.

    No particulars are provided and I am not satisfied that the ground makes an allegation of jurisdictional error in any way that can be comprehended. 

13. In relation to ground (3) it was said:

    The Tribunal has failed to investigate the applicant’s claim, especially the grounds of persecution in Malaysia.

    The Tribunal accepted the claims of the applicants, or at least their evidence, and had regard to relevant country information.  I simply do not accept that assertion. 

14. In relation to ground (4) it was said:

    The second respondent failed to comply with the mandatory requirement under s424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review, and the consequence of it being relied upon, and to invite the applicant to comment or respond to that information.

    There is no evidence before me of that. The decision of the Tribunal would appear to be, in relation to the fear of harm from the family, uncontested in that what the applicant said was not put in issue.  It was simply found by the Tribunal that what was claimed did not amount to significant harm. 

15. In relation to the societal discrimination point at paragraph [40], the Tribunal says clearly that it put to the applicants, as they were interviewed together, that the country information relating to the decision of the Malaysian Court appears to have changed the relevant law.  I do not accept, on the basis of that paragraph and that absence of any countervailing information, that ground (4) is factually well-founded.  That being the case, the application or applications are dismissed. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       21 June 2022