Eqk17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 458

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EQK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 458

File number(s):

MLG 2233 of 2017

Judgment of:

JUDGE MANSINI

Date of judgment:

10 June 2022

Catchwords:

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – matter listed for final hearing – no error established – application dismissed with costs  

Legislation:

Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 476

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

Division:

Division 2 General Federal Law

Number of paragraphs:

30

Date of last submission/s:

30 May 2022

Date of hearing:

6 June 2022

Place:

Melbourne

The Applicant:

Appeared in person

Solicitor for the Respondents:

Sparke Helmore

ORDERS

MLG 2233 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EQK17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE AFFAIRS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	10 JUNE 2022

THE COURT ORDERS THAT:

1.The Application filed on 18 October 2017 be dismissed.

2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $5,000.

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 Mansini

INTRODUCTION

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made pursuant to s.476 of the Migration Act 1958 (Cth) (Act). In that decision, the Tribunal affirmed a decision of a delegate of the First Respondent Minister not to grant the Applicant a protection visa.

2. For the reasons that follow, the application is dismissed.

   CONTEXT

3. The Applicant is a citizen of the Federation of Malaysia (Malaysia).[1] The Applicant arrived in Australia on 23 May 2015 as a holder of a visitor visa which expired on 23 August 2015.

   [1] Tribunal’s decision at [22], not challenged before this Court.

4. On 31 March 2016, the Applicant applied for a class XA subclass 866 Protection visa (protection visa).[2] In the form submitted with the protection visa application the Applicant claimed that, if she is returned to Malaysia, her family will find her and bring her back to their home and beat her.[3]

   [2] Court Book (CB) page 1-38, see “received” date stamp at CB13.

   [3] CB 33 – Form 866C Application for a Protection visa dated 31 March 2016.

5. On 29 July 2016, a delegate of the Minister refused to grant the Applicant a visa. By letter to the Applicant on 3 August 2016, the delegate notified the Applicant and attached the delegate’s protection visa assessment (delegate’s decision).[4] In summary, the delegate doubted the genuineness of the Applicant’s claims and found that she could access the protection of Malaysian authorities if returned to Malaysia. Ultimately, the delegate found that the Applicant did not meet the criterion to be granted a protection visa at s.36(2)(a) and s.36(2)(aa) of the Act.

   [4] CB 44-53.

6. On 17 August 2016, application was lodged with the Tribunal for review of the delegate’s decision.[5] By written invitations, the Applicant was invited to provide material or written arguments for the Tribunal to consider and to appear before the Tribunal to give evidence and present arguments relating to the issues in her case.[6]

   [5] CB 62.

   [6] CB 65.

7. On 19 September 2017, the Applicant appeared before the Tribunal assisted by an interpreter.[7] At the Tribunal hearing, the Applicant stated that in the time since she applied for a protection visa, she had married a Malaysian citizen who holds a bridging visa. The Applicant also stated that she did not have any children.[8]

   [7] CB 80.

   [8] Tribunal’s decision at [20].

   THE TRIBUNAL’S DECISION

8. On 22 September 2017, the Tribunal provided a written record of its decision affirming the decision under review (Tribunal’s decision).

9. Despite some “misgivings” as to her credibility, the Tribunal accepted the following aspects of the Applicant’s claimed circumstances as credible:

   (a)was from a large and poor family and had been sent to live with family friends who verbally and physically abused her and made her do menial work and paid employment whilst completing high school (at [27], [30]); and

   (b)had attempted to leave the abusive couple whilst still in school but had been located by the couple and punished when forced to return (at [31], [32]).

10. The Tribunal did not accept that the Applicant had been forced to remain in the household past completion of her schooling suffering ongoing abuse as an adult, as the couple had no legal rights over the Applicant once she reached her age of majority and found that the Applicant had “significantly embellished her tragic personal circumstances as a minor to augment her otherwise weak claims for protection” (at [32]).

11. The Tribunal also found that the Applicant’s delay in applying for the protection visa (after the expiry of her visitor visa) consolidated its credibility findings. It found that the Applicant’s testimony at the hearing indicated she was more interested in “regularising her migration status than seeking out Australia’s protection obligations” on the basis of genuine fears of persecution (at [33]).

12. The Tribunal had regard to independent country information and the Applicant’s marital status (also put to her at the hearing before the Tribunal) and found that the Applicant would have access to legal protections as well as spousal support to protect herself from any further physical harm if she returned to Malaysia (at [35]). 

13. Ultimately, the Tribunal made findings as to the relevant statutory criterion and concluded that it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act. Further, the Tribunal did not consider that the Applicant met the criterion on the alternative basis of being a member of the same family unit as a person who satisfies the criterion at s.36(2)(a) or s.36(2)(aa).[9]

    THE APPLICATION IN THIS COURT

    [9] AAT Decision and Reasons [44]-[46] (in Applicant affidavit of 18 October 2017).

    Procedural Context

14. The Applicant applied to this Court on 18 October 2017. Accompanying the application was an affidavit in support which annexed the Tribunal’s decision and reasons of 22 September 2017.

15. The application contains one ground and two particulars, as follows:

    The Tribunal did not make its decision 30 March 2016 according to law in that:

    1.The tribunal committed jurisdiction error by taking into account irrelevant considerations.

    PARTICULAR

    a)In paragraphs 45, the tribunal referred to the Applicant’s willingness to approach the authorities for identity documents being’s a strong support for the contention that the applicant did not fear being harmed in Malaysia.

    b)Whether the Applicant was willing to or was able to obtain identity documents is an erelevant of whether or not the Applicant fears being harmed in Malaysia.

    [sic]

16. A response was filed on 30 October 2017 in which the First Respondent sought orders that the application be dismissed and the Applicant pay the First Respondent’s costs of these proceedings.

17. On 27 June 2018, the Applicant and First Respondent attended a procedural hearing before a Registrar of the Court. By subsequent orders of the Court dated 27 June 2018, the Applicant was invited to file an amended application with proper particulars of the grounds of the application, affidavits (if any), a supplementary court book (if any) and written submissions - 28 days prior to the final hearing date.

18. Hearing dates were fixed but vacated over the period August 2019 to March 2022. On 30 March 2022, the parties were notified of a final hearing before Judge Blake on 7 June 2022. After the time for filing materials had passed, the matter was listed before the Court as presently constituted on 6 June 2022.

19. The Applicant did not, within 28 days of the final hearing (as notified by Judge Blake) or at any stage, file anything further in support of this application for review nor did the Applicant seek a further period in which to do so.

20. In addition to its response, the First Respondent filed a Court Book on 11 July 2018 and written submissions on 16 August 2018. The First Respondent also produced correspondence to the Applicant by which it provided her with its materials (including as recently as 3 June 2022, to the Applicant’s nominated email address for service). In its submissions, the First Respondent contended that the application does not appear to relate to the Applicant’s circumstances or the Tribunal’s decision at all but rather appears to have been “borrowed from another application for judicial review”.

21. On 6 June 2022, the Applicant appeared before the Court as presently constituted assisted by an interpreter. With the assistance of the interpreter: I asked the Applicant to explain to me why the Tribunal was in error and afforded her opportunity to respond to the oral and written submissions of the First Respondent; the Applicant asked the Court to allow her to remain working in Australia in order to pay an order as to costs, if her application was unsuccessful; and the Applicant otherwise confirmed that she did not wish to say anything further in support of her application or in response to the First Respondent’s submissions.

    CONSIDERATION

22. The single ground of this application refers to a Tribunal decision of 30 March 2016 and contends that the Tribunal erred in that decision by taking into account irrelevant considerations. The particulars relate to “paragraph 45” of the Tribunal’s decision and a said reference or finding related to the Applicant’s willingness to approach authorities for identity documents.

23. A copy of the Tribunal’s decision was attached to the Applicant’s application in this matter. A review of that document, provided by the Applicant, discloses that:

    (a)the Tribunal’s decision was published on 22 September 2017 – not 30 March 2016; and, further

    (b)there is no reference in the Tribunal’s decision to the Applicant having approached (or been willing to approach) authorities for identity documents.

24. The date of the Tribunal’s decision as cited in the application is plainly incorrect. The Applicant’s original application for a protection visa was stamped as received on 31 March 2016 (that is, one day after the Tribunal decision said to be subject of review according to the application to this Court). Since her original application for a protection visa, the Applicant was provided with: the delegate’s decision, on and dated 29 July 2016; and the Tribunal’s decision, on and dated 22 September 2017.

25. On the face of the materials before the Court, the Tribunal had certain identity documents of the Applicant before it (which the Applicant had provided to the delegate and the delegate had obtained using its systems, and were on the departmental file[10]) but did not have before it any information about how the Applicant obtained the identity documents which she produced to the delegate in support of her application. It follows that there was nothing before the Tribunal (or the delegate) to take into account as to her actual approach or willingness to approach authorities in this regard. Further, there is no reference or finding made in the Tribunal’s decision that the Applicant had approached “the authorities” for “identity documents”.

    [10] CB46, CB83, CB88.

26. I have taken into account that the Applicant was self-represented at the time of the final hearing. To the extent that the single ground and/or particulars of the application included typographical error(s), I am satisfied that the Applicant has been on sufficient notice of the issues (in excess of four years since the response was filed in these proceedings) and afforded ample opportunity to understand the issue(s), to seek independent advice, and to respond including by invitation of this Court to file an amended application. The Applicant has not availed of those opportunities by seeking to amend the application or otherwise provided any explanation.

27. There is nothing on the materials before the Court which discloses that there was any error in the approach of the Tribunal to its consideration of the Applicant’s claims, the applicable statutory thresholds or application of the law. In my view, the Tribunal’s conclusions were open to it for the reasons it gave.

28. The First Respondent seeks the sum of $5,000 for costs being less than the scale in Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. The Applicant has been on notice of the First Respondent’s intention to seek costs for over four years by the response filed on 30 October 2017. By her question of the Court at the hearing of this matter, the Applicant was plainly cognisant of the First Respondent’s application for its legal costs. Beyond seeking more time to work in Australia in order to pay any costs ordered if her application did not succeed, which is beyond jurisdiction, the Applicant did not otherwise address the Court as to costs.

    CONCLUSION

29. For the above reasons, the single ground of this application is not made out and the Applicant has not established that jurisdictional error arises on the face of the Tribunal’s decision.

30. I discern no error in the approach of the Tribunal. Accordingly, the application should be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

Associate:

Dated:       10 June 2022