Fha17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 313

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FHA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 313

File number(s):

MLG 2627 of 2017

Judgment of:

DEPUTY CHIEF JUDGE MERCURI

Date of judgment:

12 April 2024

Catchwords:

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal –protection visa – consideration of whether Tribunal’s decision made in accordance with law – where Tribunal’s findings reasonably open on the evidence before it – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss 5, 5H, 36, 429A

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), pt 2, sch 2

Division:

Division 2 General Federal Law

Number of paragraphs:

56

Date of last submission/s:

12 March 2024

Date of hearing:

12 March 2024

Place:

Melbourne

Solicitor for the Applicant:

The Applicant appeared in person

Solicitor for the First Applicant:

Mr J Macaulay of Clayton Utz

ORDERS

MLG 2627 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FHA17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	12 APRIL 2024

THE COURT ORDERS THAT:

1.The applicant’s application filed on 4 December 2017 be dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $7,370.

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. Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 15 November 2017.  By its decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) refusing to grant the applicant a protection visa.

   BACKGROUND

2. The applicant is a Malaysian citizen.[1]

   [1] Court book at page 12.

3. On 13 November 2015, she arrived in Australia holding a tourist visa.[2]

   [2] Court book at page 21.

   Application for protection visa on 4 February 2016

4. On 4 February 2016, the applicant applied for a protection visa.[3]

   [3] Court book at pages 1 to 40.

5. In her application for a protection visa, she claimed that she had been threatened by the authorities in Malaysia due to her involvement in a boycott parade against the government.[4]  She said that if she were to return to Malaysia, she was afraid of getting caught.[5]  The applicant also claimed that she could not seek help from the authorities due to corruption and that she had moved to other parts of Malaysia but it was still traumatic for her to stay there.

   [4] Court book at page 30.

   [5] Court book at page 31.

   Refusal of protection visa application on 7 April 2016

6. On 7 April 2016, a delegate of the Minister refused to grant the applicant a protection visa.[6]

   [6] Court book at page 70 and following.

7. The delegate found that, having regard to the applicant’s claims and relevant country information, although the applicant might be subject to criminal charges arising from any involvement in protests against the government, the delegate did not accept that ‘a person with the applicant’s claimed profile would be subject to unlawful detention or serious harm amounting to persecution’.[7]

   [7] Court book at page 85.

8. The delegate therefore concluded that the applicant did not have a well-founded fear of persecution for the claimed reasons, nor did the delegate find that the applicant’s circumstances engaged Australia’s complementary protection obligations.[8]

   [8] Court book at pages 85 and 86.

   Application to Tribunal on 29 April 2016

9. On 29 April 2016, the applicant applied to the Tribunal for review of the delegate’s decision.[9]

   [9] Court book at pages 88 to 114.

10. On 25 October 2017, the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments in support of her review application.[10]

    [10] Court book at page 126.

11. On 12 November 2017, the applicant sent an email to the Tribunal confirming that she would be appearing at the Tribunal hearing scheduled for 14 November 2017.  In that email, the applicant also said:

    … I have new further submission for the tribunal to related by my case.  I’ve been threaten by this individual who waited for to come back to malaysia.  I got the threaten by ex my boyfriend lately.  I’ve have conversation will him.  I will be attach the conversation for you.[11] (sic)

    [11] Court book at page 159.

12. Annexed to this email is what appears to be a series of missed call messages and some text messages (although not in English and with no translation provided) from ‘Asyraf’.

13. The hearing record indicates that the applicant attended the hearing before the Tribunal on 14 November 2017.[12]  It also indicates that she was assisted at that hearing by a Malay interpreter and that the hearing lasted for about an hour and a half.

    [12] Court book at pages 178 to 179.

14. On 15 November 2017, the Tribunal member handed down its decision by which it affirmed the delegate’s decision not to grant the applicant a protection visa.[13]

    [13] Court book at page 187 and following.

    TRIBUNAL DECISION

15. The Tribunal’s decision of 15 November 2017 is set out at pages 187 to 195 of the court book.

16. After setting out the relevant considerations that must be taken into account in determining whether to grant a protection visa, as well as the applicant’s claims before the delegate, the Tribunal went on to set out the delegate’s reasoning in refusing a protection visa.[14]

    [14] Tribunal decision record dated 15 November 2017 at paragraphs [12] to [14].

17. The Tribunal then records at paragraphs [15] to [29] further information and evidence provided by the applicant immediately prior to and during the Tribunal hearing.  Relevantly, the Tribunal noted that the applicant made claims to fear harm not included in her application for a protection visa.  Moreover, the applicant said that the claims in her application were incorrect.

18. Relevantly, the applicant told the Tribunal that she:

    (a)had left Malaysia because she was a lesbian and feared harm on that basis;

    (b)had signed the blank application form and sent it to an agent in Victoria who filled in the details and made claims that were not true;

    (c)had not included her claim to fear harm due to being a lesbian on the advice of her agent;

    (d)could not return to Malaysia because she was a lesbian and she feared going back due to the adverse perception of her as a lesbian; and

    (e)had a relationship with a man whilst in Australia who had since returned to Malaysia and she feared that he would harm her if she returned to Malayasia.

19. The Tribunal explored with the applicant her claims to be a lesbian and found her evidence in this regard to be unconvincing.[15]  Moreover, the Tribunal explored with the applicant her fears of harm from her ex-boyfriend.[16]  Again, the Tribunal found her evidence in this regard to lack particularity and to be unconvincing.

    [15] Tribunal decision record dated 15 November 2017 at paragraph [25] and following.

    [16] Tribunal decision record dated 15 November 2017 at paragraph [27] and following.

20. The Tribunal also explored with the applicant why she could not seek the protection of the authorities in Malaysia if she feared harm from her ex-boyfriend there, or indeed, why she could not move to another area within Malaysia to get away from her ex-boyfriend.

21. The Tribunal therefore put to the applicant that:

    … she had made false and misleading statements to the department of immigration and this, along with the new claims she was making may lead the Tribunal to form a negative view about her credibility.[17]

    [17] Tribunal decision record dated 15 November 2017 at paragraph [29].

22. The Tribunal did not accept that the applicant had sent a signed blank form to an agent, who she could not identify other than by his first name, and that the agent made false claims about the basis of the harm she feared if returned to Malaysia.  Relevantly, the Tribunal said that it was not:

    … satisfied that the applicant has given the Tribunal a truthful account of her reasons for coming to Australia and for not wanting to return to Malaysia, or of why she made claims in her application form which are not true.[18]

    [18] Tribunal decision record dated 15 November 2017 at paragraph [32].

23. At paragraph [35], the Tribunal went on to find that:

    … the applicant is not a witness of truth and the claims made in her application and subsequently to the Tribunal at the hearing and discussed below lack credibility.

24. Having regard to the applicant’s evidence, including the applicant’s evidence that she had not suffered any harm in the past in Malaysia due to her claimed homosexuality, the Tribunal did not accept that the applicant departed Malaysia because of her sexuality, either actual or perceived.  Relevantly, at paragraph [40], the Tribunal found ‘the applicant’s account of her alleged homosexuality vague, lacking in credibility, incomplete and unpersuasive’.

25. Nor was the Tribunal satisfied, on the totality of the evidence before it, that the applicant had suffered family violence at the hands of her ex-boyfriend or that she would do so in the future if she were to return to Malaysia.[19]

    [19] Tribunal decision record dated 15 November 2017 at paragraphs [42] to [46].

26. Relevantly, the Tribunal considered some of the text messages which the applicant had provided and which she said evidenced the threats received from her ex-boyfriend.[20]  Although not all of the text messages were read out at the hearing (and therefore translated via the interpreter), the Tribunal was not satisfied that these messages were indeed from her ex-boyfriend.  Moreover, even if the Tribunal accepted that they were, the messages which were translated did not, in the Tribunal’s view, contain threats of harm.  To the extent that other messages were provided but not translated, the Tribunal noted that the applicant had every opportunity to put relevant information before the Tribunal to evidence her claims.

    [20] Tribunal decision record dated 15 November 2017 at paragraph [44].

27. The Tribunal was therefore not satisfied that the applicant suffered harm in the past, nor that she would in the future, on the basis of family violence at the hands of her ex-boyfriend if she were to return to Malaysia.[21]

    [21] Tribunal decision record dated 15 November 2017 at paragraph [46].

28. Nor did the Tribunal accept that the applicant faced harm due to the possibility of a forced marriage if she were to return to Malaysia.  This was, in part, due to the lateness of the applicant’s claim, as well as the lack of specific details provided.[22]

    [22] Tribunal decision record dated 15 November 2017 at paragraph [48].

29. In conclusion, the Tribunal found that the applicant did not meet the criteria for a protection visa, nor was it satisfied that the applicant was entitled to complementary protection.  As noted at paragraph [54] of its decision record, the basis of these findings was that the ‘Tribunal has found the applicant’s claims are not credible’.

30. For these reasons, the Tribunal affirmed the delegate’s decision not to grant a protection visa.

    PROCEEDINGS IN THIS COURT

31. The applicant filed her application for judicial review in this court on 4 December 2017.

32. In her application, the applicant raises the following ‘grounds’ of review:

    1.The Tribunal did not make it’s decision on 25 December 2016 according to law, in that:

    2.The Tribunal was made decision without looking at the evidence of the applicant.

33. Notwithstanding orders made by Registrar Allaway on 22 August 2018 permitting the applicant to file any amended application and written submissions 28 days prior to the hearing, the applicant did not do so.

    Hearing on 12 April 2023

34. When the matter came before me for hearing on 12 April 2024, the applicant represented herself and was assisted by a Malay interpreter.

35. After explaining the nature of the proceeding and the scope of the court’s powers in a judicial review application, the applicant was invited to make submissions in support of her application.

36. The applicant stated that she was not happy with the Tribunal’s decision.  She said that the Tribunal did not consider in depth what she said and that the hearing before the Tribunal was conducted by videoconference and was not that formal.  The applicant also said that at the time, she was a bit confused and did not understand the process.

37. In oral submissions in response, the Minister submitted that to the extent that the applicant’s oral submissions could be taken to suggest that the Tribunal hearing did not represent a properly constituted hearing because it was conducted by video-link, the Tribunal is permitted to conduct hearings electronically pursuant to section 429A of the Migration Act 1958 (Cth), which permits the Tribunal to allow an applicant to appear by telephone, closed-circuit television, or any other means of communication.

    GROUNDS OF REVIEW

38. I will now turn to the applicant’s grounds of review.

39. As a preliminary matter, the applicant’s reference to a decision made on 25 December 2016 appears to be an error, as the Tribunal’s decision subject of this review application was made on 15 November 2017.

40. Moreover, as submitted by the Minister, the ground of review is unparticularised.  Without in any way being critical of the applicant, who appeared without legal representation, she also did not expand upon the ground in her oral submissions.  At its highest, it appears that the ground of review raises two issues:

    (a)first, that the Tribunal’s decision was not made in accordance with the law; and

    (b)secondly, that the Tribunal did not take into account all relevant evidence and material.

41. This second ground appears to have been echoed in the applicant’s oral submissions to the extent that she claimed that the Tribunal did not consider in depth what she said.

42. For the following reasons, both of these grounds must fail and the application dismissed.

    Determination in accordance with the law

43. When the Tribunal decision is read fairly, it is apparent that the Tribunal correctly identified and applied the applicable law.  The Tribunal summarised the relevant and applicable law at paragraphs [3] to [8] of its decision record.

44. Moreover, the Tribunal considered but rejected each of the applicant’s claims and found that she did not face a real chance that she would suffer serious harm if she were to return to Malaysia and therefore did not meet the refugee criteria in section 5H of the Act.[23]

    [23] Tribunal decision record dated 15 November 2017 at paragraph [52].

45. In addition, the Tribunal considered but rejected the applicant’s claims that as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there was a real risk that she would suffer significant harm as defined in sections 36(2A) and 5(1) of the Act.[24]

    [24] Tribunal decision record dated 15 November 2017 at paragraph [54].

46. A fair reading of the Tribunal’s reasons does not disclose any error in its application of the applicable law.

    Tribunal’s consideration of the evidence before it

47. As to the second aspect of the applicant’s ground of review, namely, whether the Tribunal failed to consider the evidence before it, this aspect must also fail.  Not only has the applicant not identified the evidence she says she gave which was not considered, but it is also apparent from the Tribunal’s reasons that it understood the applicant’s evidence, but ultimately, rejected that evidence on the grounds of its credibility findings.  Those findings were reasonably open to the Tribunal on the evidence before it.

48. As is clear from the Tribunal’s reasons, when it became apparent that the applicant did not press the claims for asylum as set out in her initial application, the Tribunal noted the applicant’s evidence that she had provided a blank application form to an agent who then included grounds which did not reflect the reasons that she feared harm.  The Tribunal did not accept the applicant’s explanation as to how her application form was prepared.[25]  That finding was open on the evidence before the Tribunal.

    [25] Tribunal decision record dated 15 November 2017 at paragraphs [32] to [34].

49. The Tribunal also considered the applicant’s new claims to fear harm on return to Malaysia as a result of her claimed sexuality, her fear of harm from her ex-boyfriend and the very late claim that she feared harm from a forced marriage.[26]  Again, for reasons which are apparent on the face of the Tribunal’s reasons, the Tribunal did not accept the applicant’s evidence in relation to each of these matters.  Again, each of these findings was reasonably open on the material before the Tribunal.

    [26] Tribunal decision record dated 15 November 2017 at paragraph [36] and following.

50. Importantly, the Tribunal put its concerns to the applicant in the course of the hearing and the applicant provided a response.  The Tribunal’s rejection of the applicant’s explanation was reasonably open to it.

51. I note that in reply, the applicant stated that she was not requested to provide evidence about her sexuality and suggested that she could provide such evidence to the court.  It is a matter for the applicant to make out her claim and to put forward the evidence upon which she seeks to rely in doing so.

52. At the heart of the Tribunal’s reasoning is a rejection of the applicant’s claims on the ground that it found that she was not a witness of truth.  That finding was reasonably open on the evidence before the Tribunal and no error arises from the way in which the Tribunal considered the evidence before it.

53. The applicant’s ground of review is therefore not made out.

    CONCLUSION

54. For each of these reasons, the applicant’s application fails and must be dismissed.

55. In those circumstances, the Minister is entitled to his costs of this application.  The Minister seeks an order for costs fixed in the sum of $7,370.[27] This is a sum below the amount prescribed in Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).  I am therefore satisfied that it is appropriate to make an order that the applicant pay the first respondent’s costs fixed in sum of $7,370.

    [27] Minister’s Outline of Submissions filed on 27 February 2024.

56. For each of these reasons, I make the orders set out at the commencement of these written reasons for judgment.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Associate:

Dated:       12 April 2024