EJE18 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 549

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EJE18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 549

File number:

MLG 2541 of 2018

Judgment of:

JUDGE GOSTENCNIK

Date of judgment:

17 April 2025

Catchwords:

MIGRATION – protection (class XA) (subclass 866) visa – visa refused – decision of the (then) Administrative Appeals Tribunal to affirm delegate’s decision – where applicant alleges jurisdictional error – where applicant’s grounds of review lack merit – Tribunal’s decision not attended by jurisdictional error – application for review of Tribunal’s decision dismissed

Legislation:

Migration Act 1958 (Cth) ss 5H, 5J, 5K, 5K-LA, 5L, 5LA, 36, 36(2)(a), 36(2)(aa), 36(2A), 499

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, div 1, pt 2, item 3

Migration Regulations 1994 (Cth) sch 2

Cases cited:

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

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142, 219 FCR 212

Division:

Division 2 General Federal Law

Number of paragraphs:

23

Date of last submission/s:

10 March 2025

Date of hearing:

24 March 2025 

Place:

Melbourne

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Ms K Petrovski

Solicitors for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 2541 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EJE18

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GOSTENCNIK
DATE OF ORDER:	17 APRIL 2025

THE COURT ORDERS THAT:

1.The applicant’s application for judicial review filed on 24 August 2018 is dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $5,000.00.

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

Judge Gostencnik

INTRODUCTION

1. A delegate of the (then) Minister for Immigration and Border Protection refused the applicant a Protection (Class XA) (Subclass 866) visa. The former Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision, and the applicant now seeks judicial review of the Tribunal’s decision.

   BACKGROUND

2. The applicant is a Malaysian citizen who arrived in Australia on 17 August 2016: Court Book (CB) 14; CB21. The applicant applied for a Protection visa on 2 November 2016: CB1-CB37; CB45, claiming he was a member of the “Bersih” group, and that the Malaysian Government was imprisoning many Bersih members. The applicant claimed he would be detained, questioned and imprisoned if he returned to Malaysia, and local authorities were unable to protect him because the “Bersih [is] against the government parties”: CB34. The applicant also claimed he was unable to relocate as “Malaysia is a small country and move out (sic) is the only option I have …”: CB32-CB34.

3. On 9 March 2017, the Minister’s delegate refused the visa application, and a notification of the delegate’s decision was transmitted to the applicant by email: CB45-CB47. The email attached a notification letter: CB45, and the protection visa decision record and some attachments: CB48-CB63. The decision record, records that the applicant’s claims were, overall, vague and there was a lack of evidence supporting the various claims the applicant made: CB56-CB57. The delegate was not satisfied that the applicant was a refugee as defined in s 5H(1) of the Migration Act 1958 (Cth)[1] (Act), nor that there were any substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there was a real risk the applicant would suffer significant harm pursuant to s 36(2A). The delegate was therefore not satisfied that the applicant is a person in respect of whom Australia had protection obligations with respect to ss 36(2)(a) or (aa): CB57-CB58.

   [1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.

   TRIBUNAL PROCEEDING

4. The applicant applied to the Tribunal for a review of the delegate’s decision on 10 March 2017: CB64-CB65. The Tribunal acknowledged receipt of the application on 16 March 2017, noting that the validity of the application had not been assessed, and enclosed an ‘Information for review applicants’ factsheet: CB67-CB68. On 31 January 2018, the Tribunal invited the applicant to attend a hearing scheduled for 6 March 2018 to give evidence and present arguments relating to the issues in his case: CB70-CB71. The correspondence enclosed an ‘Information about hearings – MR Division’ factsheet and requested the applicant complete and return a ‘Response to hearing invitation – MR Division’ form to confirm his attendance at the hearing and to provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider: CB71.

5. The applicant attended the hearing where he was assisted by a Malay interpreter: CB73.  By its decision made on 14 August 2018, the Tribunal affirmed the delegate’s decision refusing to grant the applicant a protection visa: CB77. The applicant was notified of the Tribunal’s decision on 15 August 2018 by email transmission: CB75 which attached a copy of the Tribunal’s Statement of Decision and Reasons (Decision): CB78-CB91, an extract of ss 5, 5J, 5K, 5L, 5LA and 36 of the Act: CB92-CB94 and an ‘Information about decisions – MR Division’ factsheet.

   TRIBUNAL’S DECISION AND REASONS

6. The Tribunal first summarised the relevant protection visa criteria by reference to ss 5, 5J, 5K-LA and 36 of the Act, Sch 2 to the Migration Regulations 1994 (Cth)and Ministerial Direction No.56 (Direction No. 56) made under s 499. It noted the requirement to consider policy guidelines prepared by the Department of Immigration (PAM3) Refugee and humanitarian – Complementary Protection Guidelines and the (PAM3) Refugee and humanitarian – Refugee Law Guidelines and the 2018 Country Information Report on Malaysia prepared by the Department of Foreign Affairs and Trade (DFAT), to the extent relevant. At [11]-[36], the Tribunal summarised the applicant’s oral evidence, concluding at [9] and [69] that the delegate’s decision should be affirmed. It considered the relevant DFAT Country Information Report for Malaysia produced in 2018 at [37]-[43], before then discussing its findings at [44]-[68].

7. The applicant’s claims at the hearing, were as follows:

   ·he attended a Bersih rally once in 2016 but could not recall the specific date: at [13] of the Decision;

   ·he was the only one of his friends from the Bersih group that was being hunted because he trespassed into an area at the Bersih rally which were occupied by a rival political group, which the applicant referred to as ‘their area’. Consequently, the rival group beat him. He alleged that the scars on his body serve as proof of that beating, and that he did have a medical report detailing his injuries, but it was not with him: at [14]-[16];

   ·the applicant originally intended to file a police report, but learned his attackers had already made a report: at [18], claiming his attackers reported that his injury was self-inflicted: at [19]. He could not provide particular details of the identity of his attackers, but said he came to Australia because he did not want to end up in jail, alleging that “[t]he first complainant to file a report is taken to being (sic) in the right”: at [19];

   ·the police came to the applicant’s home three times to search for him after his participation at the Bersih rally and police report filed against him by a former friend. He stated that he will be imprisoned because of the reports made to the police: at [21]-[22];

   ·the applicant did not remember the number of the Bersih rally he attended. He stated that “[t]he government did not like them because they took their protests to the streets and endangered the lives of members of the public”: at [24]. The applicant also stated that there was no-one in Malaysia who was able to corroborate his claims, and that his family members would not be able or willing to assist: at [25]-[26];

   ·the applicant was able to leave Malaysia because he had not yet been charged and had a clean record at the time, and that the applicant was only wanted for questioning by the authorities: at [27]; and

   ·he did not detail the events of the alleged attack in his application to the Department as “he was concerned he might not get a visa”: at [59].

8. The Tribunal had “serious reservations” about the applicant’s claims, noting it “was general in nature” and “lacking in detail”: Decision at [48]. The Tribunal otherwise dealt with the applicant’s claims as follows:

   (a)the applicant could not give precise detail about the people he had attended the rally with, and the Tribunal reasoned that as these people were “key protagonists in the applicant’s account”, it would have expected the applicant to provide specific detail about those people: at [49];

   (b)the applicant’s account about his involvement in the rally was not consistent with the relevant country information about Bersih rally events, and there was no evidence that a rally occurred on the date and at the location the applicant alleged. As the applicant was unable to recall the number of the rally, or the date he attended, and was unable to provide evidence to establish that the particular rally had occurred, the Tribunal rejected the applicant’s claim that he was involved in the rally: at [50], and did not accept that the particular rally to which the applicant referred had occurred: at [52]-[53];

   (c)the applicant was unable to provide further clarity about how the claimed fight transpired, or any medical reports to evidence his injuries or their cause. The Tribunal therefore did not accept that the applicant attended a rally, nor that he sustained injuries while in attendance: at [55]-[57];

   (d)the Tribunal rejected the applicant’s claim advanced for the first time at the hearing.  The applicant claimed that he suffered a serious attack with a machete and a sword. The Tribunal found this claim was made to bolster his “Bersih claims”, reasoning that it was implausible the applicant would not have referred to such a critical claim in his visa application: at [59]-[60]; and

   (e)the Tribunal found it incongruous that the applicant would be able to depart Malaysia without difficulties, in the circumstance that he claimed he was wanted for questioning by authorities because of his political profile and for an alleged attack on a member of the rival political group: at [61].

9. The Tribunal reasoned that the applicant’s “confused account and reorganising of the facts as presented in country information [led] the Tribunal to have serious concerns that any of the events claimed actually happened”: Decision at [53], noting the applicant “had submitted little evidence that would convince the Tribunal that the events he claims occurred, did so.”: at [58]. The Tribunal rejected the applicant’s central claims: at [63]. The Tribunal found on the evidence and available country information, that if the applicant returned to Malaysia, there was not a real chance that he would face serious harm because of his actual or imputed political opinion arising from his claimed attendance at a Bersih rally in or around July 2016: at [64]. The Tribunal explained this was because it rejected that the applicant attended such rally; that he became engaged in a physically violent assault at the rally; that he and others were injured because of that assault alleged; or that he was wanted by the Malaysian authorities: at [64]. The Tribunal was therefore not satisfied that the applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act and it affirmed the delegate’s decision not to grant the applicant a visa: at [65]-[69].

   CONSIDERATION

10. The judicial review application contains 3 grounds of review as follows (reproduced verbatim):

    1.I am disatified with the Presentation of the language translator representily me of the day, because answer it to short not accurate

    2.Everthing transmitted in sosial media is Incorrect and contary of the actual situation. I feel there is no guarantee of my safety

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

11. Although a Registrar of the Court had earlier made orders enabling the applicant to file written submissions and further material in support of his application, the applicant has not done so. At the commencement of the hearing, I explained to the applicant the nature of the Court’s judicial review jurisdiction. I explained that the Court may only grant relief if the applicant establishes the Tribunal’s decision is affected by jurisdictional error and that the proceeding before the Court was not another opportunity to present his merits case, nor was it a review of the merits of the Tribunal’s decision or his visa application. I explained that jurisdictional error involved a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law ... no decision at all’ and is in that sense ‘void’”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610 at [2]. And that jurisdictional error can take many different forms and that the categories are not closed. I gave the applicant some examples of jurisdictional error as including material errors by a decision-maker:

    (a)misunderstanding the applicable law;

    (b)asking the wrong question;

    (c)exceeding the bounds of reasonableness;

    (d)identifying a wrong issue;

    (e)ignoring relevant material;

    (f)relying on irrelevant material;

    (g)failing to consider a “claim” or a relevant “integer” of a claim;

    (h)in some cases, making an erroneous finding or reaching a mistaken conclusion;

    (i)failing to observe some applicable requirement of procedural fairness; and

    (j)showing actual or there is apprehended bias.

12. Turning then to the review grounds the applicant advances.

    Ground 1

13. By ground 1, the applicant expresses dissatisfaction with the accuracy of the interpreter’s translation during the Tribunal hearing. This is, in substance, a contention that the applicant was denied procedural fairness or a fair hearing by reason of the standard of interpretation at the Tribunal hearing. During the hearing before me, the applicant said that he thought the interpreter correctly translated some of his answers to the Tribunal’s questions, but not others. He said that he gained this impression because some answers he gave were lengthy, but the translation consisted of only a few words. The applicant said, by way of example, while giving evidence to the Tribunal about a fight in which he was involved his answer comprised about 14 words, but the interpreter’s translation consisted of only three words. The applicant said he could not remember anything else about the translation. The applicant said he did not raise the issue with the Tribunal or the interpreter at the time because he was nervous and scared.

14. Beyond this, the applicant did not produce in evidence any audio recording or transcript of the Tribunal hearing. Nor was he able to explain how his complaint about inaccurate translation, even if accepted, deprived him of the opportunity to effectively participate in the hearing before the Tribunal.

15. Allegations of translation errors are to be tested against procedural fairness under the general law, rather than by bluntly assessing whether the Tribunal has given the applicant an opportunity to appear before it to give evidence: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142, 219 FCR 212 at [74]. Deciding whether the applicant was denied a fair hearing because of translation or interpreting issues requires an assessment of the standard of interpreting deployed during the hearing and considering whether the standard was so inadequate as to prevent the applicant from effectively giving evidence. Put another way, the issue to be decided is whether the standard of translation was such that the applicant was deprived of a real or meaningful opportunity to be heard: SZRMQ at [44]-[45], [74].

16. As already noted, the applicant did not provide the Court with an audio recording or a transcript of the Tribunal’s hearing. And as the first respondent correctly pointed out, the applicant has not furnished any other materials to corroborate his assertion. Moreover, he said that he was aware during the Tribunal hearing that there may be some translation issues, but he did not raise his concerns with either the Tribunal or the interpreter. There is otherwise nothing, on the face of the Tribunal’s Decision or in the CB material, to indicate that there were any material issues with interpretation during the Tribunal hearing. There is no basis upon which I could conclude that one or more translation errors were made, much less to conclude that any error, if made, was material, or that the standard of interpretation provided during the Tribunal hearing deprived the applicant of a real opportunity to participate in the Tribunal proceeding, or a meaningful opportunity to be heard.

17. Ground 1 does not disclose jurisdictional error and fails.

    Ground 2

18. By ground 2, the applicant joins issue with the Tribunal’s finding at [52] of the Decision. There, the Tribunal notes that it was unable to find evidence of a Bersih rally having been held on the date and at the location the applicant had claimed. The Tribunal did not accept that, had the rally occurred, the applicant would have been unable to provide some material to support his claim – for example evidence of press or social media coverage of the rally. During the hearing of the judicial review application, the applicant said in relation to this ground that he tried to explain to the Tribunal why he did not provide any evidence of social media coverage. He said that he tried to explain that the rally involved only a small group of motorbike riders and a fight which he narrated to the Tribunal, but it was not “translated well” to the Tribunal member. Absent an audio recording or transcript of the Tribunal hearing, allegations or complaints about the standard of translation simply cannot be made out.

19. As the first respondent correctly contended, the Tribunal’s finding at [52] of the Decision was open to the Tribunal for the reasons it gave. And the reasons given provide a logical and rational basis for making the finding. Ground 2 does not disclose jurisdictional error and fails.

    Ground 3

20. By ground 3, the applicant contends that although he was given an opportunity to speak at the Tribunal hearing and to answer questions, he was under pressure and so did not focus on answering the questions directed to him. During the hearing before me, the applicant explained that by “pressure”, he meant that the questioning by the Tribunal made him feel pressured, particularly when the same questions were “twisted”, which the applicant accepted might have been the Tribunal testing his claims. The applicant conceded that he did not raise his concerns about feeling pressured or the impact that this might have been having on the answers he gave the Tribunal at the time of hearing. Again, the absence of a transcript or recording of the hearing before the Tribunal means that the veracity of the applicant’s claims and the impact that the Tribunal’s questioning might have had on the applicant’s ability to meaningfully participate in the hearing cannot be assessed. It is accepted, as the first respondent contended, there is nothing in the materials before the Court to indicate that the applicant was unfit to attend and answer questions at the Tribunal hearing, nor anything to indicate the Tribunal offended the rule against apprehended bias. The Decision records that the Tribunal asked the applicant questions about his claims and assessed his claims based on the responses and the material it identified. This it was entitled to do. Ground 3 does not disclose jurisdictional error and fails.

1. The applicant did not assert any other error. As the applicant was unrepresented before the Court, I have reviewed the Tribunal’s Decision and the material in the CB filed by the first respondent with an eye to identifying jurisdictional error beyond merely dealing with the applicant’s grounds of review, but I have not identified any such error.

2. Consequently, the judicial review application will be dismissed.

   Costs

3. The first respondent sought an award of costs in the amount of $5,000.00 if the application failed. The amount is less than that currently fixed by item 3, Pt 2, Div 1 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a migration matter determined at final hearing. There was no cogent reason advanced why such an order ought not be made, and I consider the amount sought to be reasonable and reflective of the costs incurred by the first respondent given the history of this matter, the result, the work involved as disclosed from the filings and the length of the hearing. The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

Associate:

Dated:       17 April 2025