EVT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 592

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EVT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 592

File number(s):	MLG 2365 of 2017
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	29 July 2022
Catchwords:	MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) visa – consideration of the accuracy of interpreting before the Tribunal – where no Tribunal transcript has been filed – consideration of the applicant’s claims to fear harm from religious beliefs – where this claim was not put to the Tribunal – consideration of the Tribunal’s interpretation of the Migration Act 1958 (Cth) – where there was no error apparent in the Tribunal’s analysis of the legislative requirements – no jurisdictional error established – application dismissed with costs.
Legislation:	Migration Act 1958 (Cth), ss 36; div 4 pt 7
Division:	Division 2 General Federal Law
Number of paragraphs:	50
Date of last submission/s:	10 March 2022
Date of hearing:	10 March 2022
Place:	Melbourne
Solicitor for the Applicant:	The applicant appearing on her own behalf
Solicitor for the Respondent:	Ms I Ward of Sparke Helmore Lawyers

ORDERS

MLG 2365 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	EVT17 Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	29 JULY 2022

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2.The applicant’s application for judicial review filed 3 November 2017 be dismissed.

3.The applicant pay the first respondent’s costs in the amount 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

DEPUTY CHIEF JUDGE MERCURI:

INTRODUCTION

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 24 October 2017.  By that decision, the Tribunal affirmed a decision of a delegate of the (then) Minister for Immigration and Border Protection (‘the Minister’) to refuse the applicant a Protection (Class XA) visa (‘protection visa’).

   BACKGROUND

2. The applicant is a Malaysian citizen.  She arrived in Australia on 8 February 2016 as the holder of a Visitor visa.[1]  The applicant applied for a protection visa on 3 May 2016.[2]  In her application for a protection visa, the applicant claimed:

   (a)she had participated in Bersih (‘yellow shirt’) protests,

   (b)the government ordered the arrest of the applicant and her friends;

   (c)she fled to Australia; and

   (d)if she were to return, the government would imprison her.[3]

   [1] Minister’s Outline of Submissions filed 24 February 2022 at paragraph [3].

   [2] Court book at pages 1 to 36.

   [3] Court book at pages 32 to 34.

3. On 26 July 2016, the delegate refused to grant the applicant a protection visa.[4]

   [4] Court book at pages 45 to 54.

4. The applicant applied for a review of the delegate’s decision on 8 August 2016.[5]

   [5] Court book at pages 55 to 56.

5. The applicant appeared before the Tribunal on 28 September 2017 to give evidence and present arguments, assisted by a Malay interpreter.[6]  At that hearing the applicant raised a further claim, namely that she had suffered domestic violence at the hands of her husband.[7]  The applicant was afforded the opportunity to provide further information in support of this further claim by 20 October 2017, however no further information was provided by that date or by the date on which the Tribunal determined the matter, namely on 24 October 2017.[8]

   [6] Court book at pages 70 to 72.

   [7] Tribunal decision record dated 24 October 2017 at paragraphs [24] to [31].

   [8] Tribunal decision record dated 24 October 2017 at paragraphs [32] to [33].

6. In its decision, after setting out the background to the application and the applicant’s evidence, including evidence raised in the hearing before it, the Tribunal set out its consideration of relevant country information.[9]

   [9] Tribunal decision record dated 24 October 2017 at paragraph [34] and following.

7. At paragraph [50] of its decision record, the Tribunal then set out those matters which it found credible in relation to the applicant’s claims, namely that:

   (a)the applicant belongs to the Roman Catholic tradition of Christianity, has had limited education and that she worked in the public education sector as an administrative assistant before departing Malaysia;

   (b)the applicant was married and estranged from her husband with whom she has two daughters;

   (c)the applicant’s parents live in Sabah and her father works in the police force; and

   (d)at the time of the hearing, the applicant’s children were living with her parents in Sabah.

8. The Tribunal also accepted that the applicant attended Bersih rallies as claimed, but noted her evidence that she was not involved in the organisation or administration of those rallies.[10]

   [10] Tribunal decision record dated 24 October 2017 at paragraphs [51] to [55].

9. The Tribunal also accepted the applicant held anti-government political opinions.  After referring to country information, the Tribunal found that based on the applicant’s evidence and the country information, the applicant was not a person of interest to the authorities and that she has a remote or far-fetched chance of serious harm arising from her arrest and/or charge based on her political opinion if she were to return to Malaysia.[11]

   [11] Tribunal decision record dated 24 October 2017 at paragraph [57].

10. The Tribunal considered the applicant’s claims about the impact on her employment in Malaysia of her participation in the Bersih rallies and, notwithstanding reservations arising from the applicant’s failure to produce any further documents about this issue, accepted that the senior Malaysian Minister had in the past threatened public servants with such disciplinary action.[12]

    [12] Tribunal decision record dated 24 October 2017 at paragraphs [58] to [60].

11. The Tribunal ultimately accepted that the applicant would face a real chance of harm on her return in the sense that she would face challenges and difficulties if she was to return to Malaysia, but ultimately did not consider that she faced a real chance of significant harm when regard was had to the supports that she has in Malaysia, her skill set and her motivation.[13]

    [13] Tribunal decision record dated 24 October 2017 at paragraph [61].

12. The Tribunal therefore concluded at paragraph [62]:

    62.Having considered all the applicant’s claims, both individually and cumulatively, arising from her political opinion, the Tribunal finds that the applicant has does not have (sic) a real chance of serious harm due to her political opinion, imputed or otherwise, if she returns to either her home state of Sabah or Malaysia more generally into the reasonably foreseeable future.

13. It is clear from a fair reading of the Tribunal’s reasons as a whole that notwithstanding the obvious typographical error in paragraph [62], the conclusion reached was that the applicant did not have a real chance of serious harm.

14. Similarly, in considering the complementary protection provisions, the Tribunal found that the applicant only has a very remote or far-fetched chance of significant harm through arrest, interrogation and imprisonment arising from her participation in a protest in 2015.  It further found that there was not a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia.[14]

    [14] Tribunal decision record dated 24 October 2017 at paragraphs [63] to [64].

15. Similarly, in paragraph [65] when considering the applicant’s claims relating to the consequences to her as a result of her resignation from the public service prior to coming to Australia for fear of retribution, the Tribunal accepted that she ‘will face a real risk of harm arising from these specific claims, however it does not accept the harm will amount to significant harm’.  The Tribunal then goes on to explain the basis of its conclusion in this regard.

16. The Tribunal considered in detail the applicant’s claims arising from the family violence she referred to for the first time at the Tribunal hearing.[15]  Relevantly, the Tribunal:

    (a)gave the applicant the benefit of the doubt and accepted her family violence claims even though she did not provide corroborating documents within the time provided following the hearing;[16]

    (b)accepted that the applicant was a member of a particular social group, namely, vulnerable women in abusive marriages and women who are the victims of domestic violence;[17]

    (c)did not accept that there was sufficient evidence on which to find that there was a real chance of serious harm in being forced to remain in an abusive marriage if she were to return to Malaysia in circumstances where it had found that civil divorce is legally open to the applicant in Malaysia;[18]

    (d)the Tribunal then went on to consider whether the applicant had access to effective protection measures in her capacity as a member of the particular social group and concluded by reference to country information that she did.[19]

    [15] Tribunal decision record dated 24 October 2017 at paragraphs [67] to [82].

    [16] Tribunal decision record dated 24 October 2017 at paragraphs [68] and [69].

    [17] Tribunal decision record dated 24 October 2017 at paragraph [71].

    [18] Tribunal decision record dated 24 October 2017 at paragraph [72].

    [19] Tribunal decision record dated 24 October 2017 at paragraph [73] and following.

17. At paragraphs [77] to [78] of the decision record, the Tribunal found that the applicant therefore did not have a well-founded fear of being persecuted for a proscribed reason, and further that effective protective measures were available to the applicant in Malaysia. As such, the Tribunal found that the applicant did not satisfy the requirements of section 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’).

18. At paragraphs [79] to [81], the Tribunal considered whether the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of her removal from Australia. For similar reasons to those discussed earlier, the Tribunal concluded that the applicant could obtain protection from the authorities in Malaysia and therefore there was no real risk of significant harm and did not satisfy section 36(2)(aa) of the Act.

19. The Tribunal therefore concluded that the applicant was not a person in respect of whom Australia has protection obligations.[20] The Tribunal concluded that the applicant did not satisfy the requirements of either section 36(2)(a) or 36(2)(aa) and therefore affirmed the delegate’s decision to refuse the applicant a protection visa.

    [20] Tribunal decision record dated 24 October 2017 at paragraph [87] and following.

    PROCEEDINGS IN THIS COURT

20. On 3 November 2017, the applicant filed an application and accompanying affidavit in this court seeking judicial review of the Tribunal’s decision.  Orders were made on 11 July 2018 by Registrar Allaway permitting the applicant to file any amended application and supporting affidavit 28 days prior to the final hearing.  No such amended application or further affidavit has been filed, although the applicant did file written submissions on 1 March 2022.

21. In her written submissions, the applicant essentially repeats the basis of her application for a protection visa.  At paragraph [5], the applicant states:

    5.Though I have clarified and claimed about all my reasons in protection visa application and hearing by providing supportive documents, the delegate’s decision for my application was that the application be dismissed based on the reasons and stated that there was insufficient merit in the proposed amended ground on which I wished to rely.

22. The applicant then proceeds to raise concerns about her fears of retribution from her brother.[21] This appears to be a different claim which was not raised before the Tribunal.  As this is a judicial review application, it is not open to this court to consider material not before the Tribunal.  In essence, by this, the applicant is seeking impermissible merits review.

    [21] Applicant’s Outline of Submissions filed on 3 March 2022 at paragraph [6].

23. I also note that the applicant further states that she has reconciled with her husband who, together with their children, have come to Australia.[22]  Again, this is information which was not before the Tribunal and cannot properly be taken into account in this judicial review application.

    [22] Applicant’s Outline of Submissions filed on 3 March 2022 at paragraph [7].

24. At the hearing before me, the applicant represented herself with the assistance of a Malay interpreter.  After confirming the documents before me, I explained to the applicant that in a judicial review application, the role of the court was to determine whether there was a jurisdictional error in the Tribunal’s decision.  Importantly, I explained to the applicant that it was not the role of this court to determine the applicant’s application for a protection visa on its merits.

25. When asked whether she wished to add anything to the written submissions that she had filed the applicant said:

    (a)she could not return to Malaysia because she has a loan in Malaysia and she has been declared bankrupt there;

    (b)her husband has perpetrated further family violence against her since his arrival in Australia and he is currently serving a community corrections order in relation to a breach of a family violence order; and

    (c)during the Tribunal hearing, she mentioned a few points to the Tribunal which the interpreter did not mention to the Tribunal.

26. In response to questions from me in relation to the last point, the applicant confirmed that she had not filed a transcript of the proceedings before the Tribunal.

27. The first two matters raised by the applicant are not relevant to the present application.  They raise matters which post-date the applicant’s application before the Tribunal.  They are not matters which were before the Tribunal, nor do they squarely arise from the material before the Tribunal.  Indeed, the applicant in reply noted that these matters post-dated the Tribunal hearing.  The third point raised by the applicant goes to ground 4 of the applicant’s application and I will address this below in dealing with that ground of review.

    GROUNDS OF REVIEW

28. In her application, the applicant raises 8 ‘grounds of review’.[23]  Without in any way being critical of the applicant who represented herself in these proceedings, a number of those grounds do not identify any jurisdictional error.

    [23] Application filed 3 November 2017.

29. The matters set out in grounds 1 to 3 of her application effectively set out procedural and factual matters and do not identify any jurisdictional error on the part of the Tribunal.  To the extent that ground 3 could be said to contain a claim that the applicant was at risk of harm because of her Christian belief and the expression of those beliefs, I will deal with those claims in dealing with ground 5, which addresses the applicant’s religious beliefs.

30. Similarly, grounds 6 and 8 state:

    6.I have collected evidences to support my claim and would like to do an application to FCC to reconsider this application and set new order and replace orders made by AAT.

    7.        …

    8.I would like to request to FCC to set aside old orders and replace by new orders and grant me Permanent Partner visa.

31. Ground 6 does not identify any jurisdictional error.  Aside from the fact that ground 8 refers to a permanent partner visa, when the decision under review relates to a protection visa, this court does not have the power, on judicial review, to grant a visa of any description.  But in any event, ground 8 does not identify any jurisdictional error on the part of the Tribunal, but rather sets out what the applicant is seeking.

32. That then leaves the following ‘grounds’ of review for the court’s consideration:

    4.I have explained the Tribunal that how life is for a female in Muslim country and person I used for interpretation has not been able to explain clearly what I meant and I was not given fair procedure when it came to assessing this application and my claim.

    5.AAT has also miss interpreted (sic) definition of genuine fear and genuine refugee.  I will have my life in danger as coming from Christian religion and living in Muslim country and where I would be preaching about my religious values, extreme people would never let me live my normal life.  AAT has taken very isolates (sic) approach when it comes to a genuine refugee from Malaysia.  I have been in danger in the past and it will happen again and AAT has made an error in law while deciding whether I am genuine applicant for this application.

    …

    7.I would like to make an appeal to FCC to re consider this matter and re interpret definitions misinterpreted by …. AAT and DIBP.  FCC need to check errors in law made by AAT.  AAT has misinterpreted definition of Genuine Refugee and well-founded fear as well.  This is a serious error in law made by AAT.

    Ground 4 – Accuracy of interpreting at Tribunal hearing

33. By ground 4, the applicant appears to be raising a concern about the accuracy of the interpreting provided to her in the Tribunal hearing.  As noted above, the applicant also raised this issue in her submissions to this court.

34. As noted, the applicant has not put before the court a transcript of the Tribunal hearing.  There is nothing in the decision record which suggests that there was any difficulty in the level of interpreting provided to the applicant or that the Tribunal was not able to understand what the applicant wished to say.  Importantly, at no stage either in her written submission or in her oral submission, did the applicant identify what matters she had put to the tribunal which were not accurately interpreted.  At its highest, by ground 4, the applicant said ‘I have explained the Tribunal that how life is for a female in Muslim country and person I used for interpretation has not been able to explain clearly what I meant …’.[24]

    [24] Application filed 3 November 2017 at ground 4.

35. In the absence of a transcript, the court cannot be satisfied that the level of interpreting was so inadequate as to deprive the applicant of a fair hearing and the ability to put her evidence before the Tribunal.  Nor is there any evidence upon which the court could conclude that the standard of interpreting was so deficient that it led to errors material to a conclusion of the Tribunal and adverse to the applicant such that it could be said that the decision-making process miscarried.

36. Similarly, to the extent that ground 4 contains a claim that the applicant was not provided with a fair procedure, it lacks any particularity other than by reference to the interpreting issue. As submitted for the Minister, the procedural fairness requirements under Part 7 of Division 4 of the Act have been complied with.[25]  The applicant was invited to and did attend a hearing before the Tribunal.  The applicant was on notice of the relevant issues by reference to the delegate’s decision, and on the face of the decision record there is no evidence of any breach of the relevant procedural fairness obligations.

    [25] Minister’s Outline of Submissions filed 24 February 2022 at paragraph [25].

1. This ground is therefore not made out.

   Grounds 3 and 5 – Fear of harm arising from religious beliefs

2. In relation to ground 5 (and ground 3) the applicant refers to the fear of harm arising from her religious beliefs.  If by this ground the applicant is asserting that the Tribunal did not consider this claim, this ground must fail.  The applicant gave evidence about her religious background and beliefs and the Tribunal accepted that evidence.  Moreover, when one considers the applicant’s application for a protection visa, the applicant did not raise any claim to fear harm as a result of her religious beliefs, nor did such a claim squarely arise from the material before the Tribunal.

3. At pages 32 to 34 of the court book, the applicant sets out the basis of her claims for protection.  There is no reference to her religious beliefs or faith generally.  Similarly, there is no reference to the applicant having disclosed any fear of harm on the basis of her religious beliefs to the delegate as part of the delegate’s consideration of her application.[26]

   [26] Court book at pages 45 to 54.

4. Based on the Tribunal’s decision record, before the Tribunal, the applicant indicated that she was a Christian.[27]  As noted, in the course of the Tribunal hearing, the applicant also raised a new claim, namely that she feared harm as a result of the domestic violence perpetrated by her husband, who at that time, remained in Malaysia.  It does not appear from the Tribunal decision record that she raised any claim arising from her religious beliefs, nor does any such claim squarely arise from the material before the Tribunal. 

   [27] Tribunal decision record dated 24 October 2017 at paragraph [18].

5. To the extent that ground 3 and 5 can properly be read as suggesting that the Tribunal did not consider a claim in these terms, it is not made out.

   Grounds 5 and 7 – Tribunal’s interpretation of the Act

6. Finally, by grounds 5 and 7, the applicant claims that the Tribunal misinterpreted the definition of ‘genuine fear’, ‘well-founded fear’ and ‘genuine refugee’ for the purposes of determining her application.  At the heart of this claim is an invitation for the court to engage in impermissible merits review.  There is nothing in the Tribunal’s reasons which suggest that it misunderstood or misapplied the relevant concepts required to determine the applicant’s claims.  It simply concluded that the applicant’s situation did not come within the definition of a genuine refugee.

7. The Tribunal identified the relevant provisions applicable to the applicant’s application and the relevant principles to apply in determining whether the applicant satisfied the criteria for a finding that she was a person falling within those definitions.[28]  Moreover, it is apparent that the Tribunal accepted many of the factual matters put by the applicant, including that she was involved in the Bersih rallies in Sabah in 2015.[29]  The Tribunal also accepted that the applicant held anti-government views.[30]  Notwithstanding these findings, the Tribunal was not satisfied that her involvement placed her at risk of harm (other than in a very remote or far-fetched sense) as a consequence of this involvement or these views.[31]

   [28] Tribunal decision record dated 24 October 2017 at paragraphs [8] to [12].

   [29] Tribunal decision record dated 24 October 2017 at paragraphs [50] and [55].

   [30] Tribunal decision record dated 24 October 2017 at paragraph [56].

   [31] Tribunal decision record dated 24 October 2017 at paragraph [57].

8. The Tribunal’s assessment at paragraphs [61], [64] and [65] of its decision record shows that the Tribunal was aware of and applied the correct test. It made a distinction between a real risk of harm, or a real chance of harm, and a real risk or a real chance of significant harm. That distinction is required by the legislative definitions. It is the risk chance of ‘significant’ harm which is required to establish the preconditions under either section 36(2)(a) or (aa) of the Act.

9. There is no error apparent in the Tribunal’s analysis of the legislative requirements to make out the applicant’s claim for a protection visa. 

10. For each of these reasons, grounds 5 and 7 are not made out.

    CONCLUSION

11. As the applicant has not made out any of the grounds of review, the application for judicial review is dismissed with costs.

12. In relation to the question of costs, the first respondent seeks costs in the sum of $5,000.  This is below the scale amount for such a proceeding.  The applicant made no submissions on the question of costs.  In those circumstances, I fix the respondent’s costs in the sum of $5,000.

13. The first respondent also seeks an order amending the name of the first respondent.  I make that order.

14. I therefore make the orders set out at the commencement of these reasons.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:

Dated:       29 July 2022