ENN18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 863
•11 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ENN18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 863
File number(s): MLG 2630 of 2018 Judgment of: JUDGE CORBETT Date of judgment: 11 September 2024 Catchwords: MIGRATION – application for judicial review – protection visa – whether Tribunal failed to consider integer of claim – jurisdictional error not established – application dismissed. Legislation: Administrative Appeals Tribunal Act (Cth), s 44
Migration Act 1958 (Cth) ss 5J, 5H, 5K, 5L, 5LA, 36, 423A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 7.01
Migration Regulations 1994 (Cth) sch 2
Cases cited: Appellant P119/2002 v Minister v Immigration &Multicultural & Indigenous Affairs [2003] FCAFC 230
CZW18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 130
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submission/s: 19 August 2024 Date of hearing: 19 August 2024 Place: Melbourne Solicitor for the Applicant: The applicant appeared in person Advocate for the First Respondent: Mr Downie Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: The second respondent filed a submitting appearance ORDERS
MLG 2630 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ENN18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application for judicial review filed 3 September 2018 is dismissed.
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $6,600.00.
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 CORBETT:
Before the Court is an Application filed on 3 September 2018 in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 17 August 2018. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa (Visa).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing and designated exhibit reference “R1”.
CONTEXT
The applicant is a citizen of Malaysia (CB 23).
On 25 May 2016, the applicant arrived in Australia on a visitor (Electronic Travel Authority) visa (CB 30, 53).
On 19 August 2016, the applicant applied for the Visa (CB 10-47). The applicant made the following claim for protection in his application:
I leaved Malaysia because of the political and economical status of my country became worst and down. Our country currency decrease dramatically. The price more higher and it’s not parallel to our basic salary. I become unaffordable and poor.
On 10 January 2017, a delegate of the Minister refused to grant the applicant the Visa (CB 53-57). The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2) of the Migration Act 1958 (Cth) (Act).
On 6 February 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 58).
On 9 February 2017, the Tribunal confirmed receipt of the application. The Tribunal advised the applicant that if he wished to provide material or written arguments, he should do so as soon as possible (CB 61).
On 18 June 2018, the Tribunal emailed the applicant inviting him to attend an in-person hearing on 26 July 2018 (Hearing Invitation). The Hearing Invitation requested that the applicant complete and return a “Response to hearing invitation – MR Division” which was attached to the Hearing Invitation (Response Form). The applicant completed the Response Form on 19 June 2018 (CB 70).
On 26 July 2018, the applicant attended a hearing before the Tribunal with the assistance of an interpreter in the Malay and English languages.
On 17 August 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant the Visa and gave written reasons (Decision).
Tribunal Decision
On 17 August 2018, the Tribunal sent a copy of the Decision to the applicant by way of email (CB 78).
At paragraph [10] of the Decision, the Tribunal summarised the applicant’s claim contained in his Visa application.
At the hearing before the Tribunal, the applicant raised a new claim, namely, that he had borrowed RM 30,000 from a money lender, that he had not repaid the debt, and that he feared harm from the money lender because of this. The Tribunal summarised the claim raised by the applicant in paragraphs [12]-[16] of the Decision.
The Tribunal did not find that the applicant’s explanation or evidence regarding the money lender or the fear of harm from the money lender to be plausible. It found that:
·the detail surrounding the loan was vague and the applicant gave unconvincing, incoherent evidence about the actual or feared consequences of his non-payment (paragraph [19]);
·the applicant had left his wife and children in Malaysia, which suggested to the Tribunal that the applicant did not fear the money lender would harm his family in his absence (paragraph [20]); and
·there was no evidence that the money lender had approached the applicant, or made any threats, prior to his departure from Malaysia, or to his wife after he had left (paragraphs [19]-[20]).
Accordingly, the Tribunal did not accept the applicant’s claim with respect to the money lender to be credible and rejected that claim (paragraph [22]).
With respect to the applicant’s claim raised in his Visa application, the Tribunal accepted (at paragraph [23]) of the Decision that the applicant had experienced financial hardship, but held (at paragraph [26]) that it was not satisfied that the applicant feared persecution for any of the reasons under s 5J of the Act, including for reasons because of his race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal went on to hold that it was not satisfied that the applicant “fears persecution for any reason if he returns to Malaysia” (paragraph [26]).
The Tribunal considered whether there was a real risk that the applicant would suffer significant harm based on the economic hardship he experienced if he were to be removed from Australia and returned to Malaysia for the purposes of s 36(2)(aa) of the Act. The Tribunal was not satisfied that the economic situation in Malaysia gave rise to a real risk of significant harm to the applicant, based on the country information available to the Tribunal and the applicant’s work experience both in Malaysia and Australia (paragraphs [30] to [32]).
Accordingly, the Tribunal was not satisfied that the applicant was a person to whom Australia owes protection obligations and affirmed the delegate’s decision under review.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Decision on 3 September 2018.
The Application contains the following grounds for judicial review (without amendment):
1.THE TRIBUNAL FAILED TO CONSIDER VITAL INTEGERS OF MY CASE BECAUSE IN PARAGRAPH 23, MEMBER SAID HE ACCEPTED THAT I WAS EXPERIENCING FINANCIAL HARDSHIP. BUT IN PARAGRAPH 21, THE MEMBER SAYS I DO NOT FIND WITH MY EXPLANATIONAND REJECT THAT CLAIM. I FEEL THERE IS A CONFLICT IN THE DECISION OF THE STATEMENT ON THIS PARAGRAPH.
2.DURING MY HEARING SESSION, I WAS UNSTATISFIED WITH THE INTERPRETER BECAUSE SHE ALSO WAS UNCLEAR WITH OF MY LANGUAGE.
3.ACCORDING IN – OF THE SECTION 44 OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH) (AAT ACT) THERE IS DESCRIPTION AND AUTHORIZING ME TO MAKE SUCH ACTION FOR APPEALS TO FEDERAL COURT OF AUSTRALIA FROM DECISIONS OF THE TRIBUNAL
The applicant filed an affidavit on 3 September 2018 annexing the Decision. The applicant filed three further affidavits on 17 May 2024 (affirmed 26 April 2024), 19 June 2024 (affirmed 7 June 2024), and 21 June 2024 (affirmed 18 June 2024). The 17 May 2024 affidavit annexed a letter dated 8 April 2024 claiming that “loan sharks” in Malaysia have recently been attempting to locate the applicant, have beaten his brother, and have made posts on Facebook offering a reward to those who can give information about the applicant. The affidavit annexes what appears to be a number of untranslated identity documents and screenshots from Facebook. The 19 June 2024 affidavit annexes a letter dated 7 June 2024, purporting to be from the applicant’s father and attesting to loan sharks threatening him and attacking the applicant’s brother. It also annexes what appears to be a number of untranslated identity documents. The affidavit filed 21 June 2024 contains the same annexures as the affidavit filed 19 June 2024.
The Minister relied on the Response filed 3 December 2018 and written Outline of Submissions filed 24 April 2024.
The hearing before this Court took place on 19 August 2024.
The applicant appeared in person at the hearing and was assisted by an interpreter in the Malay and English languages. Mr Downie, solicitor, appeared for the Minister.
At the start of the hearing before the Court the applicant indicated that he did not have a copy of the Court Book prepared on behalf of the Minister or the written submissions of the Minister filed 24 April 2024. There was a short adjournment to allow copies of those documents to be supplied and for the documents to be interpreted for the applicant.
The Court also asked the solicitor for the Minster if there was any objection to the Court receiving into evidence the affidavits of the applicant filed 17 May 2024, 19 June 2024 and 21 June 2024 as all had been filed despite an order directing the applicant to file and serve any further evidence on or before 12 April 2024. The Minister did not object to the admission of the affidavits and could not identify any prejudice that may be suffered by the late filing of the applicant’s further evidence. The Minister’s position was that the affidavits were “irrelevant to the task of this Court” in reviewing the Decision for jurisdictional error.
STATUTORY FRAMEWORK
The criteria for a protection visa are set out in Section 36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for a protection visa must satisfy one of the alternative criteria in sections 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other complementary protection grounds, or is a member of the same family unit of such a person and that person holds a protection visa of the same class.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in s 5J (2)-(6) and ss.5K to5LA, of the Act. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B).
The Tribunal set these criteria out in paragraphs [3] – [7] of the Decision.
The issue to be determined by the Tribunal was whether the applicant was a refugee and entitled to a protection visa under s 36(2)(a) and if not whether the applicant satisfied the complementary protection criteria because there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country (in this case Malaysia), there is a real risk that the applicant will suffer significant harm (s 36(2)(aa)).
The original grounds upon which the applicant claimed to be entitled to protection were set out at paragraphs [10] and [11] of the Decision. The Tribunal then considered the new ground (at paragraph [12]) or “new claim” raised at the hearing. It did so noting the requirement of s 423A of the Act, that an adverse inference is to be drawn unfavourable to the credibility of the claim if the applicant was unable to provide a reasonable explanation as to why the new claim was not raised in his original application or prior to the hearing (paragraphs [17] and [18] of the Decision).
The role of this Court is not to review the merits or wisdom of the Decision; nor does it remake the Decision. The task of the Court is to rule upon the lawfulness or legality of the Decision by reference to the complaints made about it: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17].
GROUNDS - CONSIDERATION
The grounds of review relied on by the applicant are set out in paragraph 21 above. The applicant did not seek to amend them either before or at the hearing before the Court.
Ground 1
The two impugned paragraphs of the Decision, paragraphs [21] and [23] address different claims made by the applicant; the first being his written claims about the Malaysia economy and his financial hardship as discussed in paragraph [23] of the Decision, and the second being his oral claims about the money lender as discussed in paragraph [21] of the Decision. It is plain that the Tribunal considered both of the applicant’s claims and there were no conflicting findings or any failure to consider a relevant fact amounting to jurisdictional error. The Tribunal considered both the fact that applicant feared financial hardship upon return to Malaysia and potential harm at the hands of the alleged “money lender. Neither fact was sufficient to reach the conclusion that there were substantial grounds for believing the applicant would suffer significant harm within the meaning of the Act.
I agree with the submissions made on behalf of the Minister that this ground (Ground 1) is an attempt to have the Court undertake an impermissible merits review of the applicant’s claims: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
At the hearing before the Court the applicant was unable to assist in developing this ground of review further or in identifying any error. When asked, the applicant said that he was unable to understand what was written in the original application. The thrust of his submissions at the hearing were that the Tribunal had failed to properly take into account his allegations that he and his family would suffer harm from a money lender if he were to return to Malaysia.
In that regard, the applicant sought to rely upon the additional affidavits filed 17 May 2024, 19 June 2024 and 21 June 2024 to support his claim that there was a reasonable basis upon which to believe that he would suffer substantial harm if he was to return to Malaysia. However, as the solicitor for the Minister correctly observed none of this material was before the Tribunal and nor could it have been because the events referred to in each of the affidavits occurred after the date of the Tribunal’s decision. This Court cannot rely upon the affidavits to establish jurisdictional error by the Tribunal and the fact that the applicant believed he may suffer harm was considered by the Tribunal but given little weight because there was no reasonable explanation as to why the claim was not raised prior to the hearing. There was no evidence in the affidavits to suggest that the Tribunal erred in reaching that conclusion and the applicant did not give a credible explanation or submit that he had one that the Tribunal failed to consider.
Ground 2
By notation to an order of this Court made 25 March 2024 the applicant was put on notice to adduce evidence in the form of a transcript of the Tribunal hearing if he was to succeed in respect of Ground 2 of his application.
Despite this, the applicant did not seek to tender a transcript of the hearing before the Tribunal. At the hearing before this Court the applicant sought to refer to an error which occurred at the 27 minute mark of the hearing before the Tribunal where he claimed that the interpreter present at that hearing did not properly explain that he could not afford to repay the debt which he owed to the money lender and the interest charged on that debt and that he and his family was under threat. The recording referred to by the applicant was not produced to the Court and there is no evidence that the applicant’s evidence or submissions were not accurately translated to the Tribunal.
The Tribunal did consider the question of whether the applicant would suffer substantial harm as a result of his new claim (paragraphs [11] – [15] of the Decision). The facts considered suggest that there was an accurate translation of the applicant’s submission and no misunderstanding of what the applicant’s “new claim” was and how it was explained to the Tribunal. The consideration given was consistent with the matters put to the Court as having been inaccurately translated
In Appellant P119/2002 v Minister v Immigration &Multicultural & Indigenous Affairs [2003] FCAFC 230 the Full Court of the Federal Court of Australia considered whether the translation of the hearing before the Tribunal was so inadequate that it could be said that the appellant was effectively prevented from giving evidence. The Court considered a transcript of the translation and concluded that despite errors in the translation the converse was the case. Justices Mansfield and Selway held that that no single error that was identified was material to the conclusion reached by the Tribunal and therefore there was no jurisdictional error (at [22]). Here the Court does not have the benefit of a transcript or recording but there is no error by the Tribunal clearly identified by the applicant so as to make a finding that he was effectively prevented from giving evidence. The Decision incorporates consideration of the very facts that the applicant now seeks to raise as absent due to the alleged errors in the translation.
Accordingly, there was no jurisdictional error established by the applicant. The Tribunal rejected the new claim based upon the requirements of s 423A of the Act and the absence of a reasonable explanation for not making the claim prior to the hearing. Further, the Tribunal found that there was no real risk that the applicant would suffer significant harm (paragraph [33] of the Decision).
Whilst I have read and considered the additional affidavit material relied on by the applicant it does not establish jurisdictional error nor does it show that an explanation reasonable or otherwise was given to the Tribunal or that the Tribunal failed to consider a relevant fact.
Ground 3
The final ground of review could not be explained by the applicant when asked to elaborate and clarify. This ground does not relate to any error in the decision of the Tribunal. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) relates to the right of appeal to the Federal Court of Australia of a party to a proceeding in the Tribunal on a question of law.
In the recent decision of CZW18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 130 at [40] to [45] his Honour Judge Champion of this Court considered a similar ground of review expressed in identical terms. His Honour found that the ground does not identify any substantive or underlying jurisdictional error which would support the applicant’s claim for relief. The same finding is made here.
The Court has also scrutinised the Application, the materials before the Tribunal and the Decision to identify error, noting the Court’s obligations as outlined in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [58], [77], and [100], [112] and [113]. The applicant was asked if there was any further documents or things that should have been placed before the Tribunal that were not and whether there was any other aspect of the hearing before the Tribunal that he considered unfair. There were none
Accordingly, none of the grounds upon which the applicant relies establish a jurisdictional error by the Tribunal and the application is dismissed.
At the conclusion of the hearing before the Court the solicitor for the Minister informed the Court that the name of the first respondent should be amended to “Minister for Immigration and Multicultural Affairs”. Pursuant to Rule 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 the name of the first respondent and the title to this proceeding shall be amended accordingly.
The solicitor for the Minister also sought the Minister’s legal costs of the proceeding in the sum of $6,600.00 which is a sum less than the applicable scale for an application of this kind.
CONCLUSION AND ORDERS
The name of the first respondent and the title to this proceeding is amended to Minister for Immigration & Multicultural Affairs.
The application for judicial review filed 3 September 2018 is dismissed.
The Court orders the applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $6,600.00.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate: KH
Dated: 12 September 2024
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