FTT17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 552

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FTT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 552

File number(s):

MLG 2870 of 2017

Judgment of:

JUDGE MANSINI

Date of judgment:

18 June 2024

Catchwords:

MIGRATION – protection visa – application for review of decision of the Administrative Appeals Tribunal – where applicant contended that the Tribunal erred in its application and interpretation of “refugee” and otherwise invited the Court to engage in impermissible merits review – no error of jurisdiction established or identified – application dismissed with costs.    

Legislation:

Migration Act 1958 (Cth) ss. 5H, 5J, 5LA, 36, 65, 474, 476.

Cases cited:

BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443

Craig v South Australia (1995) 184 CLR 163, 175

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Division:

Division 2 General Federal Law

Number of paragraphs:

36

Date of hearing:

18 April 2024

Place:

Melbourne

The Applicant:

Appearing in person

Solicitor for the Respondents:

Sparke Helmore

ORDERS

MLG 2870 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FTT17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	18 JUNE 2024

THE COURT ORDERS THAT:

1.The application filed on 28 December 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

1. The Applicant is a citizen of Malaysia who sought a protection visa on the basis of claims to fear harm on return which would be occasioned by illicit money lenders whose threats included serious sexual violence.

2. The Applicant now seeks judicial review of a tribunal decision to affirm an administrative decision to refuse a protection visa.  

3. For the reasons that follow, the application must be dismissed with costs.

   CONTEXT

4. On 18 March 2016, the Applicant arrived in Australia as the holder of a visitor visa.

5. On 10 June 2016, the Applicant applied for a protection (class XA) (subclass 866) visa which was refused by a delegate of the First Respondent on 7 September 2016.  

6. On 26 September 2016, the Applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision. On 4 December 2017, the Applicant attended a hearing before the Tribunal, with the assistance of a Malay interpreter.

7. On 6 December 2017, the Tribunal decided to affirm the delegate’s refusal decision. The reasons for the Tribunal’s decision were recorded, in writing, in a statement of decision of the same date (Tribunal’s Reasons). By those reasons, the Tribunal:

   (a)Received documentation provided at hearing which indicated the Applicant was enrolled in a Bachelor of Arts (Government and Public Policy) (Hons) course at university from 2014 to 2016: at [18].

   (b)Recorded and observed differing accounts given by the Applicant to it orally compared to claims made in her protection visa application. Namely, that she had borrowed money from a licensed (not unlicensed) lender; that she was threatened with sexual assault on one occasion (and not death or murder); and oral accounts about her belief that the authorities of Malaysia would not take action in relation to cases like incest or assault but, on the other hand, indicated her belief that the authorities can and would protect her if she were to go back (having also initially claimed in the visa application, with assistance of another person, that the authorities could and would not offer protection to her on her return): see, in particular, at [19] to [21], [33], [39] to [42].

   (c)Also recorded the Applicant’s further detail provided about interactions with the lender, her responses to a series of questions asked by the Tribunal Member including about why she had not gone to the police, what help she had sought within the country before departing, efforts and options to move to another place within the country and that she had made no effort to repay her debts since residing in Australia: at [22] to [46].

   (d)Made a series of findings and accepted some of the Applicant’s claims: at [47] to [48]. Relevantly, the Tribunal found that: the Applicant had borrowed money from a licensed money lender to pay her tuition fees; the money lenders went to her mother’s house and harassed her mother which led the mother to stay elsewhere and the Applicant then left Malaysia and came to Australia; the mother’s landlord reported that the people from the licensed money lender continued to attend the house to collect their money back; and the Applicant had chosen not to avail herself of state protection and not to seek the assistance of the Royal Malaysian Police in regards to the threats of sexual assault when those measures were (and remained) open to her and, on her own account, would effectively protect her from the feared harm.

   (e)Was not satisfied that the Applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, nor was it satisfied that there is a real chance that, if the Applicant returned to Malaysia, the Applicant would be persecuted for those reasons. The Tribunal was not satisfied that there is a real chance of persecution that relates to all areas of Malaysia, that the Applicant had a well-founded fear of persecution, or that the Applicant is a “refugee” in accordance with s.5H(1) of the Migration Act 1958 (Cth) (the Act): at [50].

8. Ultimately, the Tribunal was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act: at [50]. The Tribunal also found that it was not satisfied that the Applicant will be denied any durable or effective protection measures owed by the relevant State, party or organisation in her receiving country and therefore did not satisfy ss.5J(2) and 5LA: at [51].

9. In embarking on its assessment of the s.36(2)(aa) limb of the Act, the Tribunal considered country information relating to the availability of effective state protection in Malaysia and found that the Applicant could obtain protection such that there would be no real risk that she would suffer significant harm if she returned to Malaysia: at [54] to [64]. Again, the Tribunal relied on its finding that the Applicant had chosen not to avail herself of available protection measures and had indicated that she did think the Royal Malaysian Police can and will protect her if she went back to Malaysia: at [67] to [68].

10. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Malaysia, there is a real risk of significant harm as required by s.36(2)(aa): at [69].

11. The Tribunal concluded that the Applicant had not satisfied the criteria at ss.36(2)(a) or (aa) and determined to affirm the delegate’s decision: at [70] to [73].

    APPLICATION BEFORE THE COURT

12. On 28 December 2017, this application for judicial review was filed with a short accompanying affidavit. By the initiating application, the Applicant articulated 8 points under the heading “grounds of application”, in the following terms:

    1.I was holder of visitor visa and applied for protection visa.

    2.My visa was refused and then application was lodged for review.

    3.I would like to make an application to FCC to replace old orders made by DIBP and AAT.

    4.I believe AAT has made administrative error while deciding my application and misinterpret definition of refugee.

    5.I have genuine fear for life once returned to Malaysia to the matter I have outlined in my application form and provided information to AAT.

    6.I am genuine applicant for refugee visa and require protection to keep myself safe from people who would harm me once I go back.

    7.Further affidavits from my family and friends who were aware of my situation will be submitted to the FCC to favor my application.

    8.I would like request to FCC to set aside old orders and replace by new orders and accept my application for reviews as a valid application and decide this matter at FCC.

    (sic.)

13. On 23 January 2018, a response was filed on behalf of the First Respondent by which it contended that the decision of the Tribunal was not affected by jurisdictional error.

14. Various procedural orders were then made. Orders made by the Court on 11 September 2023 directed the Applicant to file and serve any amended application with proper particulars of the grounds of the application, an outline of written submissions and any additional evidence on which she sought to rely by 4.00pm on 27 September 2023. Due to interpreter (un)availability, the hearing was subsequently relisted to take place on 18 April 2024. The Applicant did not file and serve any further materials in accordance with the 11 September 2023 orders or at all.

15. The First Respondent filed written submissions and a list of authorities on 11 October 2023 as directed. They also prepared, filed and served a court book of relevant documents that was filed on 15 October 2018.

16. The matter proceeded to final hearing before the Court as presently constituted on 18 April 2024. The Applicant appeared in person and the First Respondent was represented by a solicitor. At the outset of the hearing, the process and role of the Court was explained to the Applicant, with the assistance of an interpreter. It was explained to the Applicant that she would be given the opportunity to make oral submissions at the hearing, and she elected to do so. The Applicant was asked whether she required the use of the interpreter for everything said or merely when she requested and she indicated ‘just when I ask’. The Applicant was observed to have a good comprehension and spoken level of English but was also observed to rely on the assistance of the Court-provided interpreter at times. When asked, the Applicant indicated that she was satisfied with the interpreter during the Court hearing.

    STATUTORY FRAMEWORK

17. A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [76].

18. The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia (1995) 184 CLR 163, 175 as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20].

19. The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that “a” criteria for a protection visa is that the applicant for the visa is:

    (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

20. An administrative decision-maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.

    CONSIDERATION

    Points 1, 2, 3, 7 and 8

21. Points 1, 2, 3 and 8 of the Applicant’s originating application to this Court are properly characterised as submissions as to relief sought or contentions that the Applicant’s claims to fear harm were genuinely held and the decisions of the delegate and the Tribunal were wrong. These points do not identify any alleged error of jurisdiction. Rather, in some respects, they invite the Court to engage in a review of the merits of the Tribunal’s (and delegate’s) decision which is impermissible or beyond the scope of the power of this Court.

22. Point 7 refers to an intention to seek to bring new evidence of family and friends before this Court. The Applicant was afforded an opportunity to file and serve any additional evidence on which she sought to rely by 4.00pm on 27 September 2023. The Applicant did not do so by that date or at any time prior to the hearing on 18 April 2024. In any event, this point 7 does not articulate any alleged jurisdictional error.

    Point 4

23. Point 4 of the Applicant’s originating application articulated a ground of alleged jurisdictional error by the contention that the Tribunal had erred in its interpretation and application of the definition of “refugee”. Notwithstanding the substantial opportunity afforded, the Applicant did not elaborate on this ground in writing, nor did she elaborate orally at hearing on what was meant by this ground or the nature of the alleged error.

24. The Tribunal’s reasons commenced by reciting the definition of “refugee” at s.5H of the Act and the related definition of a “well-founded fear of persecution” at s.5J (relevant to understanding the statutory meaning of “refugee”). Those recitations were consistent with the legislation and there is no identifiable error in this respect.

25. In its reasons, the Tribunal gave express consideration to the Applicant’s claims to have a well-founded fear of persecution including that she had borrowed money from a licensed money lender to pay for her university tuition, could not repay the money, the lenders went to her mother’s house and harassed her causing the mother to leave but the money lenders continued to return to the house and the Applicant left Malaysia and came to Australia.

26. The Tribunal also expressly considered the Applicant’s claim as put to it orally and found that the Applicant had chosen not to avail herself of state protection and had chosen not to seek Royal Malaysian Police assistance in relation to the threats of sexual assault when it was open (and remained open) for her to do so. Implicit in this finding was an acceptance that the Applicant was subject of threats of sexual assault by the money lenders. The Tribunal gave consideration to the Applicant’s indication at hearing that the Royal Malaysian Police can and will protect her on return. 

27. The above findings underpinned the Tribunal’s ultimate conclusions, expressed in descending or sequential order at [50] of the Tribunal’s reasons, that it was not satisfied that the Applicant has a well-founded fear of persecution and was not satisfied that the Applicant is a refugee in accordance with s.5H(1) of the Act and was not satisfied that the Applicant is a person who is therefore owed protection obligations pursuant to s.36(2)(a) of the Act.

28. On a plain reading of the Tribunal’s reasons, no jurisdictional error was revealed by this point 4 or is able to be discerned from the Tribunal’s interpretation and application of the definition of “refugee” at s.5H of the Act. This ground does not succeed.

29. For completeness, to the extent that the Applicant sought to address the Court orally at hearing about her lack of trust in police effectiveness in her home country as a reason why she did not make any police report at the time (before departing Malaysia), that was an invitation to engage in a review of the merits of her claim which again is beyond power of this Court.

    Additional point raised at the hearing

30. At the hearing on 18 April 2024, the Applicant raised an additional matter which was not canvassed in the originating application. In summary, the Applicant alleged that the interpreter service provided at the Tribunal hearing was not accurate and the interpreter did not interpret well in that they did not use the correct terminology to translate words from one language to the other.

31. When asked to specify the alleged mistranslations or inaccuracies, the Applicant elaborated as follows:

    (a)The evidence recorded at paragraph [19] of the Tribunal’s reasons was not correct to the extent that she was not looking for someone to help her apply for a visa, someone came to her and offered their assistance at the time as the Applicant was unaware of what form to fill out.

    (b)The evidence recorded at [21] was not correct to the extent that she said that the money lender was “licensed”, because she had done searches and was not aware whether the money lender was or was not licensed. Further, the Tribunal had conducted a “google” search and was not able to find a license number for the money lender.

    (c)To the extent of the evidence recorded at [24] that the Applicant had said the people who came to her regarding payment of the debt were “nice”, this was incorrect. Rather, she had sought to explain that she was given an opportunity or more time to make a payment and the interpreter had conveyed a different meaning in describing this as “nice”. The Applicant submitted this in particular was an important difference which the mistranslation made to seem unimportant.

    (d)Finally, the Applicant did not say that the Royal Malaysian Police are efficient and could protect her if she were to go back. Rather, the authorities can not adequately protect her as there are many loan sharks in Malaysia and so these matters are overlooked.

32. When asked to explain why she did not raise her difficulties or concerns about the interpretation at the time of the Tribunal hearing, the Applicant said this was because she had a lack of knowledge, and her English was limited at that time.

33. When asked to explain why she had not raised this allegation in these proceedings (at some time prior to the hearing before the Court), the Applicant contended that she did not know the Court’s procedures and had wanted to wait until the hearing to raise the matter. She also claimed to have previously raised the issue with someone at a national aid council but provided no further details.  

34. On what is before the Court, even if the application were sought to be amended to include a new ground and leave were granted, I would not be able to conclude that the Tribunal-provided interpreter was inaccurate in their interpretation of the Applicant’s submissions and evidence at the Tribunal hearing. There was no transcript or audio of the Tribunal hearing before the Court or evidence which articulated the claimed inaccuracies in translation by the interpreter at the hearing. The Applicant accepted that she did not raise any issues with the translation during the Tribunal hearing and had not raised it prior to the final hearing of these proceedings.

1. Whilst her lack of familiarity with Court procedures may be accepted, it remains the case that the Applicant had considerable opportunity to articulate a claim of alleged mistranslation during the course of these proceedings. She had foreshadowed filing further evidence in her originating application, was afforded substantial opportunity to do so, but never availed of such opportunity. At the time of the final hearing on 18 April 2024, the Applicant spoke a good level of English and described her use of the internet. The difficulties an unrepresented litigant faces in prosecuting proceedings of this kind are acknowledged, but it remains the case that the Applicant has proffered no particular or compelling reason as to why she did not comply with the plain language directions of the Court or utilise the publicly available sources of information to understand the Court’s procedures or otherwise distinguish her situation from that of any other unrepresented litigant seeking to bring such a claim before the Court.  

   RESOLUTION

2. For the above reasons, the application does not establish any error of jurisdiction and must be dismissed with costs fixed in the amount of $5,000.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

Associate:

Dated:       18 June 2024