Ewk17 v Minister for Immigration, Citizenship & Multicultural Affairs

[2022] FedCFamC2G 762

Federal Circuit and Family Court of Australia

(DIVISION 2)

EWK17 v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 762

File number(s):	MLG 2379 of 2017
Judgment of:	JUDGE YOUNG
Date of judgment:	30 August 2022
Catchwords:	MIGRATION - review of decision by Administrative Appeals Tribunal – where the applicant has a child who was born in Australia – grounds not made out – application dismissed.
Division:	Division 2 Family Law
Number of paragraphs:	10
Date of hearing:	30 August 2022
Place:	Darwin
The Applicants:	Appearing on her own behalf
Solicitor for the Respondents:	Mr Orchard of Sparke Helmore Lawyers

ORDERS

MLG 2379 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EWK17

First Applicant

EWL17

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE YOUNG
DATE OF ORDER:	30 AUGUST 2022

THE COURT ORDERS THAT:

1.The First Respondent’s name be changed to the Minister for Immigration, Citizenship and Multicultural Affairs.

2.The Application of 6 November 2017 be dismissed.

3.The First Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.

4.In any transcript produced of this hearing the name of the First Applicant is to be substituted with the initials EWK17.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG

1. This is an application for review of a decision by the Administrative Appeals Tribunal (“the Tribunal”). The court has not managed to provide a Malay interpreter to the applicant and it appears that, as I give these oral reasons, every sentence will need to be interpreted over Audio-Visual Link (“AVL”) to the applicant.  This is completely unsatisfactory and unacceptable.  However, I will persevere but as a consequence these reasons will necessarily have to be as short as possible.

2. The applicant is a citizen of Malaysia. She came to Australia in 2015, apparently with two older children.  The youngest child, who is the second applicant, was born in Australia.  The applicant’s claims before the delegate were that as a result of her pregnancy outside of marriage and refusal to have an abortion, her boyfriend threatened to kill her.  The delegate rejected the claims and took an adverse view of the applicant’s credibility. 

3. The applicant’s claims before the Tribunal were entirely different.  They were, in summary, that she had stolen funds from her employer and she was unable to repay the funds due to her responsibility for supporting her family.  The Tribunal accepted, largely, the truth of those claims and accepted that she had stolen some 40,000 ringgit from her employer.  That claim was supported by a police report from Malaysia where the applicant’s former employer seems to have raised the matter with police after the applicant disappeared.  The Tribunal concluded that any fear of prosecution on returning to Malaysia was not a protection ground as it was a fear of prosecution under a law of general application. 

4. The Tribunal in respect of the second applicant accepted that the child was a member of the same family unit as the first applicant. For largely the same reasons, the Tribunal was not satisfied that protection obligations were owed to the second applicant either.  According to the applicant, the application for judicial review was prepared by a lawyer.  The applicant told me she, however, did not understand the grounds of review.  She was unable to make any sensible submissions in relation to the grounds of review and did not file written submissions in accordance with the directions. 

5. The application raises three grounds for review, which I will summarise.  First, the Tribunal failed to have regard to an integer of the applicant’s claims relating to her gender, that is, I assume that she is a female.  Second, the Tribunal failed in concluding that the applicant’s fear of prosecution was on account of the law of general application.  It was said in the particulars that the law, presumably the Malaysian criminal law relating to theft, would be applied in a discriminatory fashion against the applicant because she was a woman and the Tribunal’s failure to consider that was jurisdictional error.  The third ground alleges that the Tribunal failed to consider an integer of the applicant’s claims, being her fear of reprisals from the former employer. 

6. In relation to the first ground of review, I do not accept that the applicant is to be understood as fairly raising gender or the fact that she was a woman as a ground to fear persecution in the material that was put to the Tribunal.  There certainly do not appear to be any such submissions in the court book made to the Tribunal and such a claim would not appear to arise by necessary implication from the other matters that were raised by the applicant before the Tribunal. 

7. The same can be said of the second ground, that is, an allegation that the Malaysian criminal law relating to theft would be applied against her in a discriminatory manner.  There is nothing of that kind raised in the materials or before the Tribunal, as far as I can see.  The claim was not expressly raised, nor was it raised by implication from a consideration of the materials.

8. In relation to the third ground, that is, a fear of reprisal from the employer, I do not see in the materials or the express claims identified by the applicant any fear, other than a fear of prosecution for theft in the Malaysian courts.  The Tribunal does not record any allegation that the applicant would fear an extra-legal reprisal from the employer. 

9. Accordingly, I am not satisfied that any ground of jurisdictional error is made out and the application will be dismissed. 

10. I should note that each sentence of these oral reasons has been interpreted by the Malay interpreter to the applicant. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       12 September 2022