DWB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 82
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DWB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 82
File number(s): MLG 1865 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 15 February 2022 Catchwords: MIGRATION – review of an Administrative Appeals Tribunal decision – refusal of a protection visa – judicial review grounds largely relating to the merits of the visa application – whether the standard of interpretation at the Tribunal hearing denied the applicant a fair hearing opportunity considered – the effect of factual errors and use of a template paragraph by the Tribunal considered – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 425, 476 Cases cited: Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759
Minister for Immigration and Citizenship v SZNCR [2011] FCA 369
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590
SZOBN v Minister for Immigration and Citizenship (2010) 119 ALD 260
SZRBA v Minister for Immigration and Border Protection (2014) 142 ALD 211
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 15 February 2022 Place: Sydney The Applicant: The Applicant appeared in person Solicitor for the Respondents: Ms Cameron of Clayton Utz ORDERS
MLG 1865 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DWB17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
15 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application filed on 28 August 2017 is dismissed.
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $7,328.
4.Pursuant to r.17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r.36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
INTRODUCTION AND BACKGROUND
By an application to show cause filed with this Court on 28 August 2017, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal). That decision was made on 5 September 2016 affirming a decision of a delegate of the Minister (delegate) to refuse to grant the applicant a protection visa (visa).
On 16 March 2016, the applicant (a Malaysian citizen) arrived in Australia (Court Book (CB) 54).
On 17 May 2016, the applicant lodged the visa application (CB 1-37) in which she claimed to have (CB 30-31):
(a)left Malaysia because loan sharks were looking for her;
(b)required finance to fund her studies in Malaysia;
(c)borrowed money from a registered company without any interest but later discovered that she was dealing with a loan shark because of the high interest charged;
(d)been unable to repay the instalments. She claims they came to her house and workplace to disturb her. She claims they threatened her, and threw red paint on the front of her home, and sometimes they would stalk her. As a result she did not feel safe anymore and decided to come to Australia to ask for protection;
(e)reported the matter to the police but the police blamed her and took no action to arrest the loan shark; and
(f)to have fled to Thailand and Indonesia but they still located her because of their wide network.
On 5 September 2016, the delegate refused the visa application (CB 50-69).
Proceedings before the Tribunal
On 10 September 2016, the applicant lodged a review application with the Tribunal (CB 70-72).
On 25 July 2017, the Tribunal invited the applicant to appear before it to give evidence and present arguments (CB 98-99).
On 14 August 2017, the applicant appeared before the Tribunal to give evidence and present arguments assisted by a Malaysian interpreter (CB 110-112). At the hearing the applicant provided the Tribunal with a business card purporting to be from the loan shark in question and a copy of her passport (CB 113-116).
At the Tribunal hearing, the applicant asserted that she no longer relied on the claims found in the visa application (CB 125, [21]). Instead the applicant claimed that she:
(a)did negotiate a loan with a local loan shark for an amount of money. Further, the amount the Applicant was loaned by the loan shark was RM 1000 and was to be used to repay medical expenses incurred by the applicant who was caring for her grandmother;
(b)was not given time to repay the debt as the loan shark required it be paid immediately. Namely, the loan shark came to her home and demanded money. When the applicant stated she did not have the money, the loan shark repossessed the applicant's television set. On a further visit to her home, the loan shark repossessed her mobile phone;
(c)did not report the actions of the loan shark to the local police because "they knew where she was living"; and
(d)avoided contact with the loan shark after these incidents and decided to come to Australia.
On 25 August 2017, the Tribunal affirmed the delegate's decision (CB 122-137).
After setting out the applicant’s claims for protection and the relevant legislation, the Tribunal summarised the hearing that it held on 14 August 2017.
The Tribunal accepted that the applicant is a citizen of Malaysia and assessed her claims against Malaysia as the receiving country for the purpose of the refugee and complementary protection assessments.
Overall, the Tribunal accepted several main aspects of the applicant’s claims made at hearing, namely that:
(a)she had negotiated to borrow funds from an “Ah Long”, which is the term for a money lender but also colloquially understood as a loan shark;
(b)the amount was RMB 1000;
(c)the purpose of the loan was to pay medical costs for the applicant’s grandmother for whom she cared; and
(d)people in Malaysia do obtain loans using the methods described by the applicant in her evidence.
However, the Tribunal also had credibility concerns arising from the version of events recounted by the applicant at hearing in relation to the various occurrences of intimidation said to have occurred when she failed to make repayments and also to the applicant’s explanations for why it was she had not sought assistance from the police.
In relation to the latter point, the Tribunal had regard to independent country information which indicated that the Malaysian government had been making concerted efforts since at least 2013 to deal with money lenders that they took the issue seriously and that there was nothing before the Tribunal to indicate that police would refuse the applicant’s request for assistance if she made it. The Tribunal was satisfied that effective state protection was available to the applicant. It appears that on that basis the Tribunal was not satisfied the applicant faced a real chance of persecution and was not a person to whom Australia owed protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) (Act).
Based on its anterior factual findings and the applicant’s claims which it considered singularly and cumulatively, the Tribunal was equally satisfied that the applicant did not satisfy the complementary protection criterion.
APPLICATION TO THIS COURT
By her application to show cause, the applicant seeks judicial review of the Tribunal’s decision under s 476 of the Act and raises six narrative grounds of review (errors in original):
1.During hearing session i was very nervous and I was very confused in that situations
2.I am not safe to go home now since I haven’t settled my debts from the loan shark
3.I am not sure if the interpreter understand my explanation during hearing sessions. And therefore a wrong decision is made
4.During the hearing session I had submitted all my evidences to the interpreter
5.According to recent research about loan sharks interest, I believe I am not able to settle all my debts now.
6.Need more time to save money and I reckon i will be able to make full payment anytime later.
The applicant appeared before me this afternoon via the Microsoft Teams platform due to ongoing COVID-19 restrictions together with the assistance of an interpreter in the Malay language. The Minister was represented by a solicitor.
The connection appeared to be clear and without any technical difficulties. The parties and the interpreter did not appear to have any difficulty in understanding one another nor engaging with the Court.
On 2 May 2018, a Registrar of this Court made orders which provided, among other things, for the applicant to file and serve an amended application 28 days before the final hearing. This did not occur. On 22 December 2021 when another Registrar made orders listing the matter before me today, and otherwise for the preparation of the matter, the applicant was ordered to file written submissions and none has been forthcoming. The applicant says that she had only been given 14 days to file written submissions and that this was not enough time. I do not accept this in circumstances where the application has been on foot since August 2017 and in any event, the applicant has known of today’s hearing since December 2021. The Minister filed written submissions in accordance with the Court’s orders.
When I describe the grounds of review as being “narrative”, they are more akin to written submissions, which urge upon the Court the veracity of the applicant’s protection claims. At the outset of the hearing, I explained to the applicant the limitations on the Court’s jurisdiction, in particular as to the granting of visas, and she indicated that she understood. Much of the content of the application for review urges upon the Court the merits of the applicant’s protection visa claims which, as explained to her, do not form part of the Court’s jurisdiction on review. To this extent, I find that each of grounds 2, 5 and 6 do not properly raise, let alone go any way to establishing a jurisdictional error.
I have excluded from that list grounds 1, 3 and 4. That is not because they expressly raise jurisdictional error but there are matters arising from those grounds which, in an abundance of benefit to the applicant, can be said to sufficiently raise an issue to explore because it arguably could give rise to a jurisdictional error if made out. That issue is whether or not the Tribunal hearing and/or the standard of interpretation were such that the hearing opportunity afforded to the applicant (for the purposes of s 425 of the Act) was meaningful.
I sought to explore each of the grounds of review with the applicant at hearing. In relation to grounds 2, 5 and 6, which I have already noted go towards the merits of the applicant’s application, primarily, the applicant had nothing to add to the grounds, although when addressing ground 2, the applicant asked me for more time. I sought to clarify with the applicant whether she was asking for an adjournment of today’s hearing or more time in general. The applicant said that she wished to have more time so that she could remain in Australia and I understood this to be a very similar submission to that which was made to the Tribunal (see [46]). The applicant did not seek an adjournment of today’s hearing.
In relation to grounds 1, 3 and 4, the applicant did not have much to add to those grounds either, except to reiterate, in relation to ground 1, that she was very nervous at the time of the Tribunal hearing. The applicant told me that she had told the Tribunal that she was nervous, although she concedes she did not ask the Tribunal at any time for a break. When I asked her why not, she said she was unaware that she could do so.
It has long been accepted that in inviting an applicant to attend a hearing to give evidence and present arguments, an invitation from the Tribunal cannot be a hollow shell or an empty gesture: see Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31]. If an applicant is not mentally fit to participate meaningfully in the hearing, such that it affects the quality of the hearing so that an applicant has not been afforded at the hearing the opportunity which the Act requires, this can give rise to a jurisdictional error, even if the Tribunal is not aware of the applicant’s mental health issues: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553. However, the mere claim of such a state of affairs does not, without more, vitiate the Tribunal’s decision. Rather, the applicant is required to establish by probative evidence that she was so unable to give evidence to the Tribunal, to present arguments or answer questions that her hearing opportunity was not a hearing at all: see Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30] to [34].
By her grounds, the applicant points to two main aspects which could be construed as alleging a failure to have been given a meaningful hearing opportunity. As noted earlier, by ground 1, the applicant says that she was very nervous and very confused at the Tribunal hearing. There is no medical or other evidence provided to the Court in relation to the applicant’s claimed mental state, her general nervousness, or any confusion caused by participating in the Tribunal hearing that it so prevented her from engaging that she was not afforded a real hearing opportunity.
It is of course natural for an applicant to feel nervous in a Tribunal hearing, in particular, when the subject matter and the possible outcome will have such a personal and profound impact on their lives. However, that by itself does not undermine the hearing process, and there is otherwise no evidence before me, let alone medical or other expert evidence, to suggest that the applicant’s condition was such that she was unable to give evidence, present arguments, or answer questions.
As the applicant conceded, she did not seek to raise such issues, nor seek an adjournment to compose herself or raise with the Tribunal any difficulty that she had in participating in a hearing. Similarly, the Tribunal decision does not record any particular observations in relation to the applicant’s demeanour, and it is open to infer that this was not something that was patent from the Tribunal’s perspective. While patency is itself is not a determinative factor, given that SCAR makes clear that such issues can be latent, any observations by the Tribunal may still shed some light on the claim.
On the basis of the material before me, I am not satisfied that the applicant’s hearing opportunity was affected by her nervousness such that it undermined the quality of the hearing to a point which would constitute a jurisdictional error on the part of the Tribunal.
By grounds 3 and 4 of the application, the applicant also makes references to the interpreter. Specifically, the applicant says:
3. I am not sure if the interpreter understand my explanation during hearing sessions. And therefore a wrong decision is made
4. During the hearing session I had submitted all my evidences to the interpreter
When asked what she wished to in relation to grounds 3 and 4 at the hearing before me, she responded: “I don’t have anything to say” and “no, nothing” in relation to each of the grounds respectively.
The way in which ground 3 is expressed is almost rhetorical in the sense that the applicant is saying that she is not sure whether the interpreter understood her, and therefore, she does not whether perhaps this might have led the Tribunal to the wrong decision. There are no particulars offered, nor is there a suggestion that some specific interaction or exchange has given rise to this concern on her part.
In SZOBN v Minister for Immigration and Citizenship (2010) 119 ALD 260 at [27], North J said that when an applicant alleges inadequate interpretation amounting to a breach of the obligation contained in s 425 of the Act, they must show that it was so inadequate that they were effectively prevented from giving evidence, and also that the errors made by the interpreter were material to the conclusions of the Tribunal which were adverse to the applicant. His Honour noted that questions of fact and degree are involved, and that a qualitative assessment must be made of the conduct of the Tribunal hearing as a whole. The generality of what is alleged by the applicant in ground 3 makes it largely impossible to satisfy the requirement that the errors were material to the conclusions of the Tribunal, and which were adverse to the applicant, in the absence of being able to even identify what those errors are. It is not sufficient to simply suggest that some error may have occurred without identifying what it was, and how it was material.
In the instant case, there is no evidence before me by which I could find that the Tribunal hearing was so affected by an inadequate standard of interpretation such that the applicant was effectively prevented from giving evidence.
By ground 4, the applicant states that during her hearing, she had to make her submissions via the interpreter. In and of itself, this is unremarkable, and the fact an interpreter was there to interpret what the applicant said was for her own benefit. Without more, and particularly in the absence of a properly prepared comparative transcript, there is also nothing before me to give context or credence to the bare assertion that the applicant makes in relation to the standard of interpretation. I am not satisfied that the standard of interpretation was such that it gives rise to an issue, let alone constitutes a jurisdictional error.
Accordingly, I am not satisfied that the grounds as raised by the applicant give rise to any jurisdictional error on the part of the Tribunal.
There remains one further matter to consider. The Minister has quite properly raised another issue for the Court’s consideration, which was found by his solicitor, which is said to arise or to emanate from paragraph [66] of the Tribunal’s reasons for decision:
Accordingly, the Tribunal does not accept that the authorities would be unwilling or unable to protect the applicant in his circumstances. There is no evidence before the Tribunal that the applicant seriously contemplated seeking the assistance of the police prior to his escape via Kuala Lumpur International Airport to Australia. The applicant provided no credible reason why he could not take advantage of this state protection or seek the assistance of the Malaysian judicial system, except to claim that he had not chosen to file a police report when threatened because he had not chosen to do so but feared for his life if he was to return to Malaysia.
It will be observed from paragraph [66] that the Tribunal refers throughout to the applicant as being male. The applicant is female. Further, and as the Minister properly concedes, there was never a claim made by the applicant to have escaped via Kuala Lumpur International Airport. From these two aspects of paragraph [66], it is clear that the Tribunal was not, in fact, talking about the applicant. The Minister concedes that these erroneous statements “amount to more than just a mere typographical error”.
I would agree with this characterisation, insofar as it is not a typographic error at all. If the reference to gender were the only error in paragraph [66], one could conceive of how this could occur by the omission of typing an “s”, resulting in “he” instead of “she”. As such, that would be a typographic error. Rather, the inclusion of a claim never made by the applicant among what is otherwise general country information leads me to infer that the Tribunal was, in fact, using an entire paragraph from another matter. I do not accept, as the Minister submitted, that it was just an unfortunate looseness of language. This meant that a “cutting and pasting” has been considered by the courts in a migration context before: see SZRBA v Minister for Immigration and Border Protection (2014) 142 ALD 211, at [19] to [23], per Siopis, Perram and Davies JJ, citing Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223, at [43] to [50], per Rares and Jagot JJ.
In SZRBA and SZQHH, the error was cast as one of apprehended bias. In my view, if so characterised, the allegation can really only be one of apprehended bias as there is nothing before me to suggest that actual bias was extant: SZRBA at [35]. However, even when viewed in light of the principles in those cases and against the accepted test for apprehended bias, I am not persuaded that the Tribunal’s less than careful use of a template paragraph from another matter would cause a fair minded observed, well informed, to conclude that the Tribunal failed to bring a fair and unprejudiced mind to deciding the applicant’s claims because it imported a statement of the departure of a male applicant from Kuala Lumpur Airport in the case of another applicant who had also departed Malaysia.
Of significance is that paragraph [66] of the Tribunal’s decision makes reference to there being no evidence before the Tribunal that the applicant seriously contemplated seeking police assistance prior to departing Malaysia for Australia. In this regard, even though it seems clear the Tribunal was referring to the circumstances of another applicant, the statement was apposite because the present applicant also gave similar evidence to the Tribunal saying as she had elected not to seek police assistance. At paragraph [63] the Tribunal, in summarising the applicant’s claims, recorded that:
Moreover, the applicant told the Tribunal that she did not choose to seek the help of the local police because the Ah Long would deal with her severely if she did so and added that the local police ‘would not involve themselves because it was a private matter’.
The first respondent says that, even if the use of the template information in paragraph [66] were found to be in error, that it would not be material and, therefore, not a jurisdictional error, citing MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at [60].
Applying the principles from MZAPC, I would need to be satisfied of the realistic possibility that a different decision could have been made had there been compliance by the Tribunal. In this regard, a counterfactual analysis leads me to conclude that if the Tribunal had properly expressed the paragraph regarding the applicant’s claim to not have sought police protection by reference to her own reasons as given at the Tribunal hearing, it would still have led the Tribunal to conclude that the applicant could have availed herself of police protection, but elected not to. That is because it later found this to be the case: see paragraph [68] of the Tribunal’s reasons.
While accepting again that the Tribunal used the wrong gender once in [68], the country information which it consulted indicated that, if the applicant were to seek protection in relation to a moneylending scenario, there were effective measures in place and that the protection was “durable” and the Malaysian state was willing and able to offer it. At paragraph [66], this information was applied to a scenario whereby another applicant from Malaysia had told the Tribunal that they had not sought to avail themselves of state protection without saying why.
In my view, the Tribunal’s conclusions at paragraphs [66] and [68] of its reasons for decision could not realistically have been different had the Tribunal included the correct gender and repeated the instant applicant’s claims from the last sentence at paragraph [63] instead of infelicitously cutting and pasting a template paragraph without thereafter tailoring the variable components of it to the present applicant’s claims and evidence. That is because the applicant in this case similarly gave evidence that she had also elected not to pursue the assistance of the authorities in Malaysia. The fact that the applicant added to this an explanation that it was because it was a private matter and therefore they would not intervene does not change the counterfactual analysis. Accordingly I am also satisfied that had those errors been made this could have resulted in a different decision for the applicant.
For the forgoing reasons, I am satisfied that the Tribunal’s errors at paragraph [66] and [68] were not material to its decision. While regrettable, they did not deny the applicant a realistic possibility of a successful outcome, having regard to her own evidence, which was serendipitously and relevantly identical to that of another applicant from whose matter the paragraph was taken without adaptation. That is also so by reference to the Tribunal’s other findings at paragraphs [61] to [65], [67], and [69] to [71].
Accordingly, there is nothing arising from the grounds of review or otherwise arising from the decision of the Tribunal which would lead me to conclude that the matter is affected by a jurisdictional error. Absent jurisdictional error, the decision is therefore a privative clause decision, and should be dismissed, and I will so order.
Consequent upon the dismissal of the application, the Minister seeks an order that the applicant pay costs fixed in the amount of $7,328. I noted for the applicant’s benefit that in considering a costs order, the two matters that I would consider were whether costs should be ordered, and if so, in what amount. When invited to make submissions on those points, the applicant said that this was a lot of money and asked me if I could reduce the costs.
As I explained to the applicant, the amount sought by the Minister reflects the Court’s scale at the time that she filed her application in 2017, and that the applicant would have an opportunity to correspond with the Department in relation to time to pay and otherwise, the amount would fall as a debt to the Commonwealth.
In the present case, I am satisfied that costs should follow the event. I am also satisfied that the amount sought is reasonable, having regard to the work done in the matter and that it reflects the Court’s scale as at almost five years ago. I will so order.
I will also note, as I explained to the applicant shortly prior to commencing my reasons for judgment, I will make an additional order today that the judgment pronounced in the substantive orders made will not be entered until the written judgment is published to the parties. I explained to the applicant that this was for her benefit, and that the time for any appeal which she may wish to make from my judgment would not start to run until she had the benefit of my written reasons.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 4 March 2022
0
7
0