DVH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Services
[2022] FedCFamC2G 371
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DVH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Services [2022] FedCFamC2G 371
File number(s): MLG 1854 of 2017 Judgment of: JUDGE VASTA Date of judgment: 11 April 2022 Catchwords: MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed Legislation: Migration Act 1958 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 11 April 2022 Date of hearing: 11 April 2022 Place: Brisbane Counsel for the Applicant: The Applicant appearing on her own behalf with the assistance of an interpreter Solicitor for the First Respondent: Mills Oakley Lawyers ORDERS
MLG 1854 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DVH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
11 APRIL 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Application filed on 25 August 2017 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,400.00.
NOTATION:
A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
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 VASTA
On 21 July 2017, the Administrative Appeals Tribunal (“the AAT/Tribunal”) affirmed a decision not to grant the Applicant, DVH17, a protection visa. On 25 August 2017, the Applicant asked this Court to review that decision.
Given the delays that were in the Melbourne Registry at that time, it was not until 2 May 2018 that the Registrar was able to mention this application. On that occasion, the Registrar made the usual orders and listed the matter for final hearing before Judge Kelly on 13 November 2019. It is not known why it was that the matter was not able to be heard on that date, but the matter did eventually go into the National Migration docket. The matter was eventually listed before me today at 2.15pm on 11 April 2022.
This means that the Applicant has been waiting over four and a half years, since she filed her application for the Court to finally dispose of the matter. The Court must apologise to the Applicant for the very tardy way in which the Court has dealt with the matter.
The background of the matter was that the Applicant is a citizen of Malaysia. The Applicant is a native of Borneo and more particularly, Sabah. The Applicant came to Australia on 4 December 2016 as the holder of an ETA visa. This visa allowed her to visit Australia for a few months. On 6 February 2017, the Applicant applied for the protection visa.
The application for the visa spun a tale of harassment, persecution and threatening behaviour by the Malaysian authorities. Normally I would list all of the claims that the Applicant made and then go through how it was that the Administrative Appeals Tribunal dealt with those claims. However, because of submissions given to me today by the Applicant, there is no need for me to do so. So I will summarise the claims made in very short compass.
The claims were that the Applicant worked as a volunteer for Sabah Sarawak Union - United Kingdom or SSU-UK. The Applicant said, in the visa application, that she had been threatened by the Malaysian government for collecting signatures. These signatures were for a petition to send to the United Nations and the British government to review the validity of the 1963 Malaysian Agreement. In the application, the Applicant said that was threatened because she was educating others about the Sabah independence movement. She said that many of her compatriots had been threatened and charged under the Sedition Act for doing this. She said, in the application, that if she returned to Malaysia, she would be charged under this Act as well.
She said that native people to Sabah had lost their customary rights and had been kicked off their own land by the government. She said that her native land had been overrun by illegal immigrants, who the government let stay there because they would vote for the government. She said that crime in the area had skyrocketed and she also had been a victim of a robbery.
She said that she had reported these crimes but they were not taken seriously by police. She said that she could not go anywhere else in Malaysia because there was ethnic and religious discrimination against native Malaysians and Christians.
The Tribunal described the Applicant’s claims as having minimal and vague detail, without any supporting evidence. The Tribunal said that the claims in the application were highly embellished and exaggerated.
The Tribunal found that the Applicant could not tell them any real details about SSU-UK. The AAT said that the knowledge displayed by the Applicant was not at the level that they would have expected from a volunteer who had an active role in the organisation. The AAT also noted that the Applicant was not using social media to educate people about Sabah independence movements, despite what she wrote in the application.
The Tribunal noted that the Applicant had no problems with leaving the country and coming to Australia, which did not seem to be what would be expected if the government were after her. Whilst there was some information that people, in the predicament described by the Applicant, had been charged under the Sedition Act, the same information said that all the charges against these people ended up being dropped.
The information from DFAT and the US State Department was that native Sabahans were the subject of positive discrimination; that is, that there were policies and legislation dictating affirmative action for natives. The Tribunal accepted that the Applicant had been a victim of a robbery but found that this was an isolated incident.
For these reasons, the Tribunal did not find that they were satisfied that the requirements for the refugee criteria or the complementary protection criteria had been met.
The Applicant had filed an application with a number of grounds in it. The Applicant appeared before me today unrepresented but assisted by an interpreter.
The Applicant told me today that she did not know about visa applications and that her English was not good. She said that someone else did the application for her and that it was too much for her to understand. She said that she tried to read it all, but it was too much for her and she just agreed to everything.
I asked her who had written all of this material and she said that she could not remember who he was, but she thinks his name was “Eda Lim”. She said that “Eda Lim” wrote the application and her material for the AAT, and she just agreed with what he wrote. I asked her if what was written was true and she said she did not know if it was true. She said it was all overwhelming because it was not her words.
It would be easy to be very critical of the Applicant for going along with what this person had written. One would not be incorrect to describe it as an attempt at a fraud upon the Court. But, after hearing from the Applicant, I am certainly not of the view that the Applicant herself was trying to perpetrate any dishonesty before the Court. The Applicant, it seems to me, simply wanted to stay in Australia and, whoever this person, “Eda Lim”, is, felt that the ends justified the means in having the Applicant agree to do what she did.
Despite what many people may be saying about this country during time of elections, it is still the best place in the world to live. This fact is brought home by the lengths to which this particular Applicant has gone to try and stay in this country. She has told me that she wants to simply come to Australia, to be able to work and to look after her children and her family. She said that the economic situation in Malaysia is bad and that she would not be in anywhere near as good a position over there as she is in Australia right now. She said that she has been working consistently for three years. She says that she pays her taxes and is a law abiding citizen.
She says that she volunteers at different organisations to help people who are less fortunate than herself. She said that she is learning English at the moment and was in effect begging me to allow her to stay and to give her a visa. I could hear the, almost, sorrow in her voice when I told her that I am not able to do that.
She explained that she is still in need of Medicare to get treatment and that she would have to pay $2,000 or more for her medical bills if she did not have Medicare. She told me that in 2019, she got married to a man who was in the Australian Defence Force. She said that that person got depression and the relationship soured and this is why she had to go to work.
She said that this man told her that he was going to divorce her but she has yet to receive any documents and so she is unsure of her marital status at this point.
As can be seen by what it is that the Applicant has said to me, she has no grounds to say that there has been any jurisdictional error made by the Tribunal. If I go through her grounds of application, I can answer them all in very short compass, notwithstanding that the rationale behind the grounds is now non-existent, given the concessions that have been made.
The first ground, the Applicant said that her claims have not been assessed with the resources available in Malaysia as similar victims in Malaysia are facing. This ground is really a disagreement with a conclusion of the Tribunal and is an invitation for merits review which is not allowed.
The next ground was that the Tribunal failed to consider a claim that arose clearly on the findings. The ground continues that “The Tribunal found that I would not be detained if I go to Malaysia.” The ground continues that:
The Tribunal accepted that the government could detain or make further actions against the Applicant. So for the Tribunal to say that the Applicant would not be detained is illogical.
Again, this ground is simply an invitation for impermissible merits review. It is simply a disagreement with the findings of the Tribunal.
The next ground was that the Tribunal failed to consider whether there was a real chance that the Applicant would suffer persecution or significant harm upon return to Malaysia. The Tribunal clearly did make that consideration and spent quite some time in its decision before it came to that conclusion.
The next ground is that the Tribunal should have asked itself whether people in Malaysia thought that she, the Applicant, would be in danger by race or religion. The Tribunal did just that by reference to the material from DFAT and from the American Department of State.
The next ground is that the record makes clear that the Tribunal did not reach conclusions based on the findings made by it, to which it applied the correct law. The record actually makes clear that the conclusions reached were based on findings that were made by the Tribunal.
None of those grounds illustrate a jurisdictional error. As I say, none of those grounds are really relevant anymore but the Court must still answer them because they were the grounds upon which this application came to Court in the first place.
When it comes down to it, the Court has tremendous sympathy for the Applicant. She has come across to this Court as being a dedicated woman, who simply wants to live in Australia.
But as I have said a number of times, my assessment is limited to whether there has been jurisdictional error or not. And in this case, there has been no jurisdictional error illustrated.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 18 May 2022
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