EIT18 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1426

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EIT18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1426

File number:

MLG 2547 of 2018

Judgment of:

JUDGE LADHAMS

Date of judgment:

20 December 2024

Catchwords:

MIGRATION – application of judicial review of a decision made by the Administrative Appeals Tribunal – whether the Tribunal constructively failed to review the delegate’s decision – whether the Tribunal denied the applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend him the opportunity to reply to adverse information due to interpretation errors at the hearing – no jurisdictional error – application dismissed.  

Legislation:

Migration Act 1958 (Cth) ss 36, 425, 476, 477

Cases cited:

BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Division:

Division 2 General Federal Law

Number of paragraphs:

45

Date of hearing:

15 November 2024

Place:

Perth (via Microsoft Teams)

Applicant:

The applicant appeared in person.

Counsel for the First Respondent:

Mr J Mangos

Second Respondent:

Submitting appearance, save as to costs.

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

MLG 2547 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EIT18

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	20 DECEMBER 2024

THE COURT ORDERS THAT:

1.The application 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 LADHAMS:

INTRODUCTION

1. The applicant is a citizen of Malaysia who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).

   [1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.

2. The applicant raises a single ground of application asserting that the Tribunal denied him procedural fairness by failing to provide a suitably qualified interpreter to assist him at a hearing before the Tribunal.

3. For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error. The application for judicial review is therefore dismissed.

   VISA APPLICATION AND ADMINISTRATIVE DECISIONS

4. The applicant first arrived in Australia holding an Electronic Travel Authority visa in November 2015.

5. The applicant applied for a protection visa on 8 January 2016. In his visa application, the applicant claimed to fear harm in Malaysia from his girlfriend’s brother and father, in circumstances where the applicant is Christian and his girlfriend is Muslim, his girlfriend became pregnant and her family was upset with their relationship.

6. On 18 March 2016 a delegate of the Minister refused to grant the applicant a protection visa. The delegate was satisfied that there were effective protection measures available to the applicant in Malaysia and found that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Migration Act.

7. The applicant applied to the Tribunal for merits review of the delegate’s decision on 10 April 2016.

8. On 12 June 2018 the Tribunal sent to the applicant, via his representative, an invitation to attend a hearing scheduled on 19 July 2018. The invitation advised that the Tribunal would provide an interpreter in the Malay language at the hearing.

9. On 17 July 2018 the applicant provided the Tribunal with a draft statutory declaration and a response to the hearing invitation. In the response to the hearing invitation, the applicant specified that he required an interpreter in the Malay language from Sarawak or Indonesia and not from Kuala Lumpur.

10. The applicant appeared before the Tribunal at a hearing on 19 July 2018, with the assistance of an interpreter in the Malay and English languages. A signed copy of the applicant’s statutory declaration was provided to the Tribunal at the hearing.

11. On 7 August 2018 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

    SUMMARY OF THE TRIBUNAL DECISION

12. The Tribunal accepted that the applicant was a citizen of Malaysia. The Tribunal accepted that the applicant was a Christian who was involved in a relationship with a Muslim woman from 2013. The Tribunal further accepted that the applicant’s girlfriend became pregnant in 2015 and that her family discovered her pregnancy and demanded that the applicant convert to the Muslim faith so that they could marry, but the applicant would not agree to converting to Islam.

13. The Tribunal accepted that the applicant was badly beaten and his car damaged in an attack by his girlfriend’s family in 2015, during which his attackers demanded that he proceed with the marriage (requiring him to convert to the Muslim faith). The Tribunal accepted that the applicant reported the attack to the police but was told that they would do nothing because, in their view, he had broken Muslim law.

14. The Tribunal was satisfied that the only other (indirect) contact the applicant had with his girlfriend’s family was when her father went to his family home in 2017 and told them that a report had been made to the police about the applicant. However, the Tribunal was not satisfied that the applicant had in fact committed any offence for which he could legitimately be charged.

15. The Tribunal was satisfied that the applicant did not make any attempt to relocate in Malaysia due to his fear of being tracked by his girlfriend’s family. The Tribunal also accepted that the applicant received no help from police when he reported the attack on him, instead being told that he might be subject to charges, if her family reported him. The Tribunal found that the evidence did not suggest, and it was not satisfied, that any formal police report had actually been lodged against the applicant.

16. The Tribunal was satisfied that the persecution feared by the applicant involved systematic and discriminatory conduct, and that the harm the applicant feared from his girlfriend’s family or persons associated with them was persecution. The Tribunal accepted that there may also be some preferential treatment by police of Muslim citizens over Christian citizens in Malaysia, meaning that if the Sabah police became involved in any dispute between the applicant and his girlfriend’s family, they would not be prepared to protect him from violence and may support questionable legal charges being laid against him.

17. Having regard to country information, the Tribunal accepted that mixed faith marriages are not recognised in Malaysia and that conversion from Islam to Christianity is not practically possible.

18. The Tribunal identified that the reason for the applicant’s claimed fear of harm was because he, as a Christian, was in a mixed faith relationship where his Muslim girlfriend became pregnant without being married, and he refused to convert to the Muslim faith to facilitate a marriage. The Tribunal accepted that the essential and significant reason for the harm the applicant claimed to fear was his religion. The Tribunal also accepted that the harm the applicant fears is serious harm, involving a threat to his life and significant physical harassment by his girlfriend’s family.

19. The Tribunal was prepared to accept that there was a real chance, if the applicant were to return to Sabah, that he would be targeted and harmed again by his girlfriend’s family. However, the Tribunal was not satisfied that the evidence in this case suggested that the applicant’s enemies had enlisted or bribed police in Sabah or anywhere in Malaysia to locate or to improperly prosecute the applicant. Rather, the Tribunal found that the evidence suggested that there was no real chance of the applicant being tracked or prosecuted by the Malaysian police, corrupt or otherwise, outside of Sabah.

20. The Tribunal did not accept that there was any legitimate basis for the applicant’s belief that his girlfriend’s family had relatives in Kuala Lumpur or other areas of Malaysia who might find him, finding the claim to be speculation only. Even if his girlfriend had family in Kuala Lumpur, the Tribunal considered the size of the city and distance from Sabah to be so great that any chance of her family locating the applicant there was remote. The Tribunal found that there was not a real chance that the applicant would be persecuted by his girlfriend’s family or persons associated and motivated by them outside of the applicant’s home state of Sabah.

21. The Tribunal did not accept that the applicant was at any risk of being persecuted by his girlfriend’s family or by persons associated and motivated by them if he were to return and relocate to any part of Malaysia outside Sabah. The Tribunal therefore found that the applicant’s fear of persecution was not well-founded because the real chance of persecution did not relate to all areas of Malaysia and the applicant did not satisfy s 36(2)(a) of the Migration Act.

22. In assessing the complementary protection criterion, the Tribunal accepted that the harm the applicant feared constituted significant harm, particularly when considered cumulatively. For the same reasons as outlined above, the Tribunal found that there was a real risk that the applicant would be significantly harmed by his girlfriend’s family and potentially the Malaysian police if he returned to Sabah, but found that there would not be a real risk of significant harm if the applicant were to relocate anywhere in Malaysia outside of Sabah. The Tribunal considered that the applicant would be capable of finding employment throughout Malaysia and supporting himself, and found the applicant could reasonably relocate to a different area of Malaysia where there would not be a real risk that he would suffer significant harm. Accordingly, the Tribunal found that the applicant did not satisfy s 36(2)(aa) of the Migration Act.

    JUDICIAL REVIEW APPLICATION

23. The applicant filed an application for judicial review on 24 August 2018. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.

24. The sole ground of application reads:

    The Second Respondent constructively failed to review the First Respondent’s decision and denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the Applicant and/or extend him a real opportunity to reply to adverse information.

    PARTICULARS

    The Second Respondent did not engage a suitably qualified interpreter to assist the Applicant at the hearing on 19 July 2018. The interpreter did not hold NAATI accreditation at all. As a result of this, the Applicant did not have the opportunity to properly respond to the questions posed by the Second Respondent.

25. Pursuant to an Order made by a Registrar of this Court on 16 March 2020, the applicant was required 28 days before the final hearing date to file and serve any amended application with proper particulars of the grounds of application, any affidavits, any supplementary court book and written submissions. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions ahead of the hearing as required by the Order.

26. The evidence before the Court comprises:

    (a)an affidavit of the applicant’s former lawyer, Ms Paghona Peggy Sophia Irini Kerdo, filed on behalf of the applicant on 24 August 2018 which annexes a copy of the Tribunal decision; and

    (b)a court book filed on behalf of the Minister on 1 April 2020.

    PROCEDURAL FAIRNESS CONSIDERATIONS AT THE HEARING BEFORE THE COURT

    Interpretation at the hearing before the Court

27. The applicant was represented by a lawyer at the time he filed his judicial review application. In that application, it was indicated that the applicant would require an interpreter, with the language of the interpreter being ‘Malay (Borneo dialect, or Indonesian dialect. Not from Kuala Lumpa.)’. The matter was listed for hearing on 29 October 2024 and, at the time the listing was made, no interpreter was booked because the applicant was still represented. The applicant’s lawyer filed a notice of intention to withdraw as a lawyer on 18 October 2024. The Court was unable to find a suitably qualified interpreter in the relevant language for the hearing on 29 October 2024 and so that hearing was vacated. After confirming the availability of an interpreter, the hearing was relisted on 15 November 2024.

28. Just before the commencement of the hearing on 15 November 2024, I was advised that the Malay interpreter and the applicant did not speak the same dialect but they were able to understand each other. At the commencement of the hearing, I raised this with the applicant and the applicant confirmed that he could understand the interpreter. I indicated to the applicant that if he could understand the interpreter and wished to proceed with the hearing on that day, that would happen, but if he would prefer to be assisted by an interpreter in his own dialect, I would reschedule the hearing to another day with an interpreter who spoke his dialect. The applicant indicated that he wished to proceed with the hearing that day.

29. I did not notice either the applicant or the interpreter having any obvious difficulties understanding each other throughout the hearing and, at the conclusion of the hearing, both the applicant and the interpreter confirmed that they had understood each other throughout the hearing.

    Further opportunity to provide evidence

30. In circumstances where the ground in the application was prepared by a lawyer and the applicant represented himself at the hearing, I took the applicant to his ground to ensure that he understood it and to confirm that he still relied on that ground. The applicant confirmed that he continued to rely on the ground.

31. As can be seen from the ground as extracted above, the sole ground of application asserts that the applicant was denied procedural fairness due to inadequate interpretation at the hearing. No evidence was filed to show any interpretation error, despite the fact that the applicant was represented by a lawyer from when he filed his application in 2018 until October 2024. I explained to the applicant that his ground could not succeed without evidence to show the interpretation error, and after hearing the applicant’s concerns about the interpretation at the Tribunal hearing, in particular, that some of the answers he gave were not interpreted correctly and that the interpreter made changes when answering in English, I indicated that the type of evidence often provided in relation to these types of errors is a transcript of the hearing prepared by an interpreter showing what was said at the hearing, how it was interpreted and how it should have been interpreted. I indicated that I proposed to give the applicant an opportunity to file further evidence such as a transcript of that kind if he wished, while acknowledging that the preparation of such a transcript may cost money.

32. The applicant indicated at the end of the hearing that he probably did not wish to file a transcript, and that he could not be sure whether the interpreter made errors or whether he (the applicant) was mistaken. In these circumstances, I made no orders for the filing of additional evidence. However, to ensure that the applicant had a proper opportunity to consider his options, I requested that the Minister’s lawyer provide an audio recording of the Tribunal hearing to the applicant, which the Minister’s lawyer agreed to do, and I thank him for his assistance in this regard. I gave the applicant liberty to apply by 29 November 2024 to seek a further opportunity to provide evidence in relation to his ground. I indicated to the parties that if the applicant sought an opportunity by 29 November 2024 to provide further evidence, I would make further directions in consultation with the parties, but if no opportunity was sought by 29 November 2024 to file any additional evidence, I would proceed to deliver judgment based on the evidence currently before the Court.

33. On 25 November 2024 the applicant sent an email to my chambers in the following terms:

    … I am writing this email to inform you that I have heard the tribunal hearing audio file again and here I would like to apologize for my accusation that the tribunal and the translator were wrong at the time of my hearing in 2018, after listening to the tribunal hearing audio file until the end I realized that I was wrong, I misunderstood and did not ask the question at the beginning, I admit that I misunderstood at that time and answered wrongly, my answer at that time should have been that I was not safe anywhere in Malaysia, because the [name redacted] family has a large family, their family is everywhere, such as [name redacted] and in Kuala Lumpur, so I cannot take refuge in any country in Malaysia, once again I apologize for my accusations against the tribunal and the translator, I ask that the Australian government can still give me one more chance to live in Australia, only in Australia do I feel safe, I really ask that the Australian government can give me one more chance please..

34. In the light of this email, the Court proceeds to deliver judgment on the basis of the evidence and submissions already before it.

    CONSIDERATION OF THE GROUND OF APPLICATION

    The role of the Court in judicial review proceedings

35. The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].

36. The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):

    2Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …

    3Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

1. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].

   Whether the Tribunal constructively failed to conduct a review, or denied the applicant procedural fairness, as a result of interpretation errors at the hearing

2. When the applicant was invited at the hearing before the Court to explain his concerns about the interpretation at the Tribunal hearing, the applicant submitted that:

   (a)some of the answers that he gave were not interpreted correctly;

   (b)he was not able to say anything or defend that because his English was not good; and

   (c)the interpreter made changes when answering in English.

3. As can be seen from the applicant’s email to my chambers sent on 25 November 2024, extracted at [33] above, after listening to the audio recording of the Tribunal hearing, the applicant is now of the view that there were no material errors in interpretation at the Tribunal hearing.

4. There is no evidence before the Court to suggest that the interpreter before the Tribunal made any errors in interpretation at the Tribunal hearing, and the Tribunal’s summary of the applicant’s evidence at the hearing referred to in its reasons does not suggest that the applicant had any difficulties communicating with the Tribunal. Having regard to the well-established principles regarding interpretation errors, such as those summarised in BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508 at [52], and the lack of evidence of any interpretation error at the Tribunal hearing, there is no basis for concluding that the applicant was not afforded a real and meaningful invitation to attend a hearing pursuant to s 425 of the Migration Act or that the Tribunal constructively failed to conduct the review, as alleged by the ground in the application.

5. The ground in the application is not established.

   Other matters raised in the applicant’s oral submissions

6. The applicant otherwise submitted at the hearing that:

   (a)he has a fear of going back to Malaysia because of the problems he has and he knows that the family will get someone to hurt or kill him;

   (b)the person that he is most worried about is the brother of his lover, who beat up the applicant before the applicant came to Australia and threatened to kill him;

   (c)in July this year, someone informed him that his lover’s family is still looking for him;

   (d)he wants to stay in Australia and be safe;

   (e)he cannot go to another state in Malaysia because there are family members in other states looking for him and he will not be safe in any part of Malaysia; and

   (f)he hopes the Australian government can prolong his stay in Australia with an appropriate visa.

7. These submissions do not assert or establish jurisdictional error in the Tribunal decision. As I explained to the applicant at the hearing, the Court does not have the power to consider for itself whether he meets the criteria for the grant of a protection visa, and the Court cannot grant him a visa of any kind. The matters raised in the applicant’s oral submissions seek impermissible merits review of the Tribunal decision.

8. I also acknowledge the information in the applicant’s email about the mistake that he made answering a question posed by the Tribunal and his request for another opportunity. The Tribunal was required to make its decision based on the information before it. That the applicant could have, but did not, provide a different answer to a question posed by the Tribunal does not establish jurisdictional error, and the Tribunal made no error by conducting the review taking into account the evidence that the applicant in fact gave to it. The Court can only grant relief to the applicant in this proceeding if he establishes that the Tribunal made a jurisdictional error. The applicant has not established jurisdictional error and there is therefore no lawful basis for the Court to give the applicant another chance to present his claims for protection to the Tribunal.

   CONCLUSION

9. In circumstances where the applicant has not established jurisdictional error, the application to this Court for judicial review of the Tribunal decision must be dismissed.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       20 December 2024