FCT18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1029
•18 OCTOBER 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FCT18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1029
File number(s): MLG 2951 of 2018 Judgment of: JUDGE CORBETT Date of judgment: 18 OCTOBER 2024 Catchwords: MIGRATION – application for judicial review – protection visa – whether interpretation deficiencies constituted reviewable error – onus of proof – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5J(1)(a), 5J(1)(b), 36(2)(aa), 36(2B), 36(2B)(b), 424A, 424A(3), 424AA, 425 Cases cited: Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Re Refugee Review Tribunal: Ex parte Aala [2000] HCA 57
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZOYU v Minister for Immigration and Citizenship [2012] FCA 936
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCFCA 123; (2004) 206 ALR 471
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 18 September 2024 Date of hearing: 18 September 2024 Place: Melbourne Solicitor for the Applicant The applicant appeared in person Solicitor for the Respondents Ms Stone, Australian Government Solicitor ORDERS
MLG 2951 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FCT18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
18 OCTOBER 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 2 October 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 $ 6,000.00.
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 CORBETT
The applicant seeks judicial review of the decision of the second respondent (Tribunal) made 10 September 2018. The Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse 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 before this Court and designated exhibit “R1”.
BACKGROUND
The applicant is a Malaysian citizen who first arrived in Australia on 1 August 2016 on a Visitor visa (CB 30-2, 114).
On 13 October 2016, the applicant applied for the Visa claiming fear of abuse perpetrated by his stepfather (CB 10–49). The applicant asserts he will suffer “emotional and mental disorders” should he return to Malaysia (CB 41–3).
On 4 May 2017, the delegate refused to grant the Visa (CB 51–67).
On 9 May 2017, the applicant lodged an application for review to the Tribunal (CB 68–9).
On 2 March 2018, the applicant was invited by the Tribunal to attend a hearing to give evidence and present submissions to be held on 3 May 2018 (CB 74–5). That hearing was adjourned by the Tribunal and rescheduled to 28 June 2018 (CB 85-6).
On 28 June 2018, the applicant appeared before the Tribunal via videoconference (CB 92–3). The documents in the Court Book suggest that the hearing duration was approximately fifteen minutes (CB 92-4).
On 10 September 2018, there was a further hearing before the Tribunal with the applicant appearing in person (CB 117-8). The Tribunal gave oral reasons for decision that day and affirmed the decision of the delegate to refuse the Visa (CB 120–6).
On 26 September 2018, the Tribunal provided written reasons for the decision (CB 143–8) (Decision).
In the application for judicial review to this Court filed 2 October 2018 (Application) (CB 1-5), the applicant identified the following grounds of review (verbatim):
“A credibility finding was made against me when it shouldn’t have been. I advised the AAT that I did not understand the interpreter at my initial hearing. However Tribunal continued to make credibility findings on the basis of the evidence I gave during that first hearing. Therefore, the Tribunal denied me natural justice and procedural fairness and erred in finding that I was not owed protection.”
The Application was supported by an affidavit of the applicant affirmed on 2 October 2018 (CB 8-9). In that affidavit the applicant said as follows (verbatim):
“I applied for a Protection visa on 13/10/2016. The Department refused my application on 4/5/2017. I had two Review hearings at AAT. The first hearing on 28/6/18 was held via video-call. I could not understand the interpreter and advised the member. I was called for a second hearing on 10 /9/18. At this time, the member had already made his mind up and delivered an oral decision affirming my refusal. This was unfair because he used the “evidence” I gave in my first hearing without the benefit of an interpreter against me.”
TRIBUNAL DECISION
In the oral decision and written reasons, the Tribunal correctly identified the two preliminary issues to be determined by the decision-maker. Firstly, whether pursuant to s 5J(1)(a) of the Migration Act 1958 (Cth) (the Act) the applicant had a fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Secondly, whether pursuant to s 5J(1)(b) of the Act there was a real chance that if the applicant were returned to Malaysia, the applicant would be persecuted for one or more of the reasons mention in s 5J(1)(a) of the Act. The Tribunal concluded that neither section applied to the applicant’s circumstances (CB 145 [1]-[4]).
The Tribunal also considered the complementary protection provisions under s 36(2B) of the Act and whether there was a real risk that the applicant would suffer significant harm in Malaysia. The Tribunal noted that for the complementary protection provisions of the Act to be enlivened, the Tribunal must find that there was a real risk of the applicant suffering significant harm (s 36(2)(aa) of the Act) (CB 145 [4]).
The Tribunal then considered the applicant’s claims for protection noting that the applicant provided “considerable further information” at the second hearing (CB 146 [3]). The applicant was questioned why he had not provided that level of detail either in his original application or at the first hearing on 28 June 2018 (CB 146 [6]). The applicant responded that the realisation that he needed to provide a higher level of detail, about his claims for protection, occurred after the first hearing with the Tribunal (CB 146 [6]-[7]).
In the oral decision and written reasons, the Tribunal recorded discussion with the applicant regarding the “country information” referred to and summarised in the delegate’s record of decision and a more recent update of that information dated 19 April 2018 (CB 122, 146 [1]). When considering the complementary protection regime and whether there was a well-founded fear of persecution or significant harm, the Tribunal considered whether the applicant could obtain protection from an authority of Malaysia. That is, the level of protection from an authority must be such that it would reduce the risk of significant harm to something less than a real risk. The Tribunal found that there was a satisfactory level of protection available to the applicant in Malaysia (CB 148 [1]).
The oral decision and written reasons do not mention the basis for the adjournment of the first hearing. However, it was noted in the Tribunal records that the applicant was assisted, at both the second and first hearing, by the services of the same interpreter who was fluent and accredited in both the English and Malay languages (CB 92, 117,122, 145 [9]).
The Tribunal then considered the applicant’s responses to questions in his original application form (CB 22–46). The Tribunal noted that the responses were vague and inaccurate in several key aspects as to the applicant’s family members, employment history and details of the alleged abuse (CB 147 [2]-[5]). The Tribunal fairly put to the applicant that those responses combined with the lack of detail about his claims reflected poorly on his credibility (CB 147 [6]).
The findings of the Tribunal, based on the evidence at the second hearing, was that the applicant’s claims for protection were not credible (CB 147 [9]). There was no well-founded fear of persecution and there was effective protection available to the applicant in Malaysia. The Tribunal held that the applicant was not a refugee as defined in s 5H of the Act, because he did not have a well-founded fear of persecution, and that the applicant was not a person entitled to complimentary protection. This is because there were effective protection measures available to the applicant in Malysia, such that there would not be a real risk of suffering significant harm (CB 148 [1], [2]-[5]). Consequently, the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
PROCEEDINGS IN THIS COURT
The hearing before this Court was held on 18 September 2024. The applicant appeared in person and was assisted by an interpreter fluent in the Malay and English languages.
The Minister was represented by Ms Stone, solicitor.
By an order of the Court made 9 April 2024, the applicant was ordered to file and serve a written submission and amended application with proper particulars including any additional evidence to be relied on by 23 April 2024. The applicant did not file any further documents or seek to rely on further evidence.
The Court confirmed that the applicant and interpreter understood each other. The applicant confirmed that his understanding of English was limited, having difficulty in conversing and reading whole texts.
The Court confirmed that the applicant had received the Court Book and the Minister’s outline of written submissions.
The applicant was asked if there were any other documents or evidence that he wished to rely on to support the Application. There were none.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on and further articulate his grounds of review. It was explained that the Court cannot review the merits of the Tribunal’s decision to grant the Visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material jurisdictional error in arriving at the Decision to not grant the Visa (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
The applicant was then given an opportunity to explain the matters that he considered to be jurisdictional errors (see DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [9]). The applicant said that during the hearing he felt that he did not understand the interpreter. When asked which hearing he was referring to he said the second hearing.
The Court then directed the applicant to the grounds of review in the Application and his affidavit affirmed 2 October 2018. The content of both documents was translated to him in Malay.
When asked again to identify any jurisdictional errors in the Decision the applicant said that he felt that during the second hearing, before the Tribunal, the interpreter spoke “too quickly”. The applicant believed that the interpreter did not explain well what he wanted to tell the member. Additionally, he felt that the member had already made up his mind at the second hearing. There was no evidence relied on to support either assertion.
The applicant informed the Court that there was not much said during the first hearing as it was very brief. He confirmed that the same interpreter assisted him at both hearings before the Tribunal. The Court then asked the applicant to explain what occurred at the second hearing. He said that the interpreter spoke very fast and did not entirely explain what he had expressed. When asked to clarify what had been wrongly interpreted, the applicant could not recall. However, he had asked the interpreter to repeat what she had said to the Tribunal but could not understand her as she spoke so fast that he could not even lip read what she was saying.
The applicant was asked again to clarify what was said by the interpreter that was wrong or incorrect. Nonetheless, the applicant repeated that he could not recall exactly what was said and again insisted that the interpreter did not interpret for him in full or did not express his story clearly.
The Court then directed the applicant to the Decision record in the Court Book (CB 143–8). The applicant informed the Court that he had read the Decision when he received it from the solicitor for the Minister and did not need it to be translated for him in Malay. When asked to explain why he applied for the Visa, he said it was because he wanted to start a new life in Australia as he had been “mentally tortured and physically abused” by his stepfather in Malaysia. When asked to explain what he considered to be wrong with the Decision he said that there was nothing he could say. When asked if there was anything that he wanted to put before the Tribunal that was not put before the Tribunal at the hearings, he said there was nothing.
The Minister relied on the outline of written submissions filed with the Court on 30 April 2024. It was submitted that the grounds of judicial review in the Application were not the same as the submissions that the applicant had just made to this Court. Whereas the applicant had previously complained about credibility findings made about him based on evidence given at the first hearing, he now claimed that the interpretation of his evidence at the second hearing was inadequate. It was submitted that there was simply no evidence to support either assertion.
It was then submitted that what was now alleged by the applicant would not in any event constitute jurisdictional error. Ms Stone referred to the onus of proof placed on the applicant to establish interpretation deficiencies. The applicant must show that he was prevented from effectively giving evidence or, that the interpretation caused errors which were material to the adverse conclusions of the Tribunal (see SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [31] and Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17], [22] (Appellant P119/2002)). It was submitted that the applicant had not discharged this onus with evidence as he could not identify any part of the Decision or conduct of the first or second hearings that had not been properly or accurately interpreted.
Ms Stone also relied on the inconsistency between the applicant’s affidavit affirmed 2 October 2018 and the complaints identified at the hearing before the Court. There was also no evidence to suggest that the findings of the Tribunal were contrary to the evidence given by the applicant at either the first or second hearing. There was no evidence that the applicant’s evidence at the first hearing had been wrongly interpreted and had been used by the Tribunal to make adverse findings as to credit (as alleged in the Application).
The Court was referred by Ms Stone to the Decision where the Tribunal considered the applicant’s claims of abuse by his stepfather, and the absence of evidence of such complaints made to police and the lack of detail in those claims (CB 146-8). However, the conclusion reached by the Tribunal was that even if the claims were true, there were reasonably effective protections available to the applicant in Malaysia (CB 148 [5]).
As to the broad allegation of a lack of procedural fairness, it was submitted on behalf of the Minister that the obligations of the Tribunal to extend procedural fairness are codified in ss 425, 424AA and 424A of the Act. It was submitted that the applicant was given the opportunity to attend two hearings and at the second hearing the Tribunal invited the applicant to comment on information concerning the credibility of his claims that the Tribunal considered would be the reason or part of the reason, for affirming the delegates decision to deny the applicant the Visa (see ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [83]). The Court was also referred to the case of VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCFCA 123; (2004) 206 ALR 471 at [24] (VAF), as authority for the proposition that “information” for the purpose of s 424A does not include the Tribunal’s subjective appraisals, thought processes or conclusions in weighing up the evidence.
Finally, on the issue of bias, the Minister relied on the frequently cited decision in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] (Jia Legeng) for the proposition that an allegation of bias must be distinctly made and clearly proved. It was submitted that the applicant failed to satisfy both requirements.
CONSIDERATION
The applicant’s grounds for review in his Application and affidavit are vague and not supported by any corroborating evidence. At the hearing before the Court on 18 September 2024, the grounds of review articulated by the applicant were quite different to the grounds identified in the Application. There was no evidence tendered by the applicant to support any of the assertions made as to the adequacy of the interpretation services provided at either the first or second hearing before the Tribunal.
In Appellant P119/2002, Mansfield and Selway JJ (with whom Emmett J agreed), considered in detail the adequacy of translation services and when inadequacy may establish reviewable error. They did so in the context of an application for a Protection visa. In that case the grounds of review identified by the appellant differed at trial to the grounds on appeal. The appellant was unrepresented and first raised the question of adequate interpretation before the Full Court (at [10]). The Full Court held that the “failure to provide adequate interpretation services…before the Tribunal could, in some circumstances, constitute a failure to observe the procedures in connection with the making of the decision…required by the Act and Migration Regulations” (see Mansfield and Selway JJ at [15]). The Court considered s 425 of the Act and said at [17]
“The claimed obligation upon the Tribunal under s 425 of the Act to provide adequate interpretation services in the conduct of the Tribunal hearing has been commented on by this Court on a number of occasions. In addition to the cases referred to above, see also Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 at 6 [27] (Singh); Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 (Perera). In its written submissions the respondent, after referring to these cases, submitted that in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s 425 of the Act by reason of inadequate translation services the appellant would need to establish that:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.”
In this case, the applicant was unable to recall what was said at the first and second hearings before the Tribunal and could not identify any aspect of either proceeding that was inaccurately translated. There was no transcript or recording of the hearings produced to the Court and no evidence that what was said by the applicant was not correctly and accurately conveyed to the Tribunal. The applicant was unable to identify any evidence that was not considered or inaccurate in the Decision and he could not identify any further evidence or document that he wanted to put before the Tribunal and did not. There was no evidence that the applicant was effectively prevented from giving evidence to the Tribunal and nothing to suggest an interpretation issue “material to the conclusions of the Tribunal adverse to the applicant” so as to constitute jurisdictional error; (Appellant P119/2002 at [17] see also Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 at [45]).
The obligation of the Tribunal to provide procedural fairness is established by ss. 424AA, 424A and 425 of the Act and the general law (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [77] and Re Refugee Review Tribunal: Ex parte Aala [2000] HCA 57 at [17], [169]-[170]). Relevantly, the obligation requires the Tribunal to invite the applicant to appear and to put “information” to the applicant and allow the applicant to comment on this information at the hearing. Here, credibility concerns were clearly put to the applicant by the Tribunal at the second hearing and the applicant was invited to comment (CB 146 [7], 147 [3]-[8]). The Tribunal also alerted the applicant to the “country information” and claimed to have discussed what they proposed to consider (CB 146 [1]). That information (apart from the updated documents described as the Department document dated 3 July 2018 and the Department of Foreign Affairs and Trade Country Information and Report for Malaysia, dated 19 April 2018) had also been considered by the delegate as relevant and was referred to in the delegate’s decision (CB 55-67).
“Information” for the purpose of ss 424A and 424AA does not include the Tribunal’s subjective appraisals, thought processes or determinations (See VAF at [24] and SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]). There was no “information” considered by the Tribunal nor information identified by the applicant upon which he was not informed or invited to comment, and none is apparent from the Decision. Moreover, information that is not either specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member of, will not be considered as information according to s 424A(3). The Decision does not disclose any improper consideration of information in breach of the Act.
The allegation of bias made by the applicant in the affidavit affirmed 2 October 2018, was not developed further by the applicant at the hearing before the Court. His assertion that he felt the member had made up his mind at the second hearing provided no clear or substantive allegation of actual bias or evidence to support a reasonable apprehension of bias. In Jia Legeng, Gleeson CJ and Gummow J observed at [71]-[72]:
“Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias[1].
The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal[2] and Johnson v Johnson[3]. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”
[1]As to members of the Commonwealth Conciliation and Arbitration Commission, see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546.
[2] (1990) 170 CLR 70 at 91 per Deane J, 100 per Gaudron and McHugh JJ.
[3] (2000) 74 ALJR 1380; 174 ALR 655.
There was nothing identified by the applicant to support his assertion of bias or that the Tribunal was not open to persuasion. There is nothing in either the oral or written reasons to suggest anything more than the Tribunal alerting the applicant to perceived deficiencies in his application (see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [22]–[29]). There was no denial of procedural fairness due to actual or apprehended bias.
The Court has also scrutinised the application for review, the materials before the Tribunal, the oral reasons recorded in the transcript (CB 120-6) and the Decision, to identify any jurisdictional error, noting the Court’s obligations as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], and [100], [112]-[114]. No error is found.
As there was no jurisdictional error by the Tribunal the Application must be dismissed.
ORDERS
At the conclusion of submissions, the solicitor for the Minister sought the Minister’s legal costs and disbursements of the proceeding in the sum of $6,000.00 which is less than the applicable scale and are reasonable. Ms Stone also sought to amend the name of the first respondent to Minister for Immigration and Multicultural Affairs.
The name of the first respondent and title to the proceeding is amended to Minister for Immigration and Multicultural Affairs.
The Application for judicial review filed 2 October 2018 is dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $6,000.00.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 18 October 2024
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