BUY17 v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2023-12-05|Before: Gordon JJ, Raper J

The name of the first respondent be changed to "Minister for Immigration, Citizenship and Multicultural Affairs".
The appeal be dismissed.
The appellants pay the first respondent's costs as agreed or taxed under r 40.12 of the Federal Court Rules 2011 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an appeal from a decision of the (then) Federal Circuit Court of Australia (FCCA) made on 21 June 2021: BUY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1388 (J). In that decision, the primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 29 March 2017. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) made on 21 March 2016 refusing to grant the appellants a Protection (subclass 866) visa pursuant to s 65 of the Migration Act 1958 (Cth). 2 This Court's jurisdiction is very confined. At hearing, the first appellant expressed her strong fear of returning to Malaysia, her concern for her children, the attempts she has made to forge a peaceful life for herself and her children and to be a good citizen in Australia, imploring this Court to give them a chance to remain in Australia. This Court's powers are very limited. In an appeal of this nature, this Court must determine whether the FCCA was correct to find that the decision of the Tribunal was not affected by jurisdictional error: see, eg, Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [117] per Nettle and Gordon JJ. This Court has no power to grant a visa nor to disagree with the merits of the decision of the Tribunal. This Court may only correct error. 3 The appeal concerned whether the primary judge had deprived the appellants of procedural fairness by reason of the fact that the FCCA supplied a Chinese Mandarin interpreter rather than a Malaysian Mandarin interpreter, whether the primary judge's conclusions regarding country information were irrational and not reasonably formed on the basis of evidence, and whether the primary judge failed to have regard to material. In addition, the appellants seek to adduce fresh evidence on appeal. 4 For the following reasons, the appeal must be dismissed.

Background 5 The appellants are citizens of Malaysia, who last arrived in Australia on 15 September 2015. The first appellant is the mother of the second to fourth appellants. The second to fourth appellants raised no protection claims of their own. 6 The first appellant claimed to fear harm in Malaysia if she were returned there by reason of the past and prospective conduct of her ex-husband, her Chinese ethnicity, being a single mother, her Buddhist faith and interest in Christianity, her political activity and physical and emotional abuse from of her parents and other family members. 7 Before the Tribunal, the first appellant's protection claim was articulated in the following way. The first appellant's ex-husband was violent and deprived her of emotional and financial support in relation to their children. In addition, the first appellant also claimed that her ex-husband forced her to have sexual relations with him and other men. After the first appellant left her ex-husband, she claims that he organised "bikies" to harass and intimidate her in the homes she subsequently moved to. The first appellant and her children often moved houses, and she often changed her mobile number, but the men would find her within weeks, and the ex-husband would obtain the first appellant's new mobile numbers. The first appellant claimed that she sought police assistance on two occasions, but they did not help her. The first appellant claimed that she fears that her ex-husband will kill her if she returns to Malaysia, will force their children to live with and work for him, and force their daughter to have sexual relations with him or other men. The first appellant claimed that she was not allowed to go to university, and found it difficult to find a job because of her ethnicity, including receiving less pay by reason of being Malaysian Chinese. The first appellant claimed that she participated in a political rally by handing out water bottles. After engaging in this activity, the attitude of her children's teachers worsened towards them. The first appellant experienced severe physical and emotional abuse at the hands of her family, who do not support her and believe that her ex-husband is a good man.

The Tribunal's decision 8 With respect to the first appellant's claimed fear of harm from her ex-husband, the Tribunal accepted that the first appellant and her children may have been subjected to some form of domestic violence, however it found that this violence ceased in or around 2008 and 2009: at T[142]. 9 Further, given the evidence before the Tribunal indicated that the first appellant's eldest son came to Australia in May 2015 (aged 16), the Tribunal found that if the first appellant's ex-husband intended to force his son to live and work with him, he was already at an age for that to happen before he left Malaysia. Given it did not happen, the Tribunal did not accept the first appellant's claim that her ex-husband would force her children to work for him should they return to Malaysia: at T[142]. 10 The Tribunal also did not accept that the first appellant was sexually assaulted or threatened with sexual assault by men acting on her ex-husband's behalf. The Tribunal also found that there was no evidence to indicate that the first appellant's ex-husband would attempt to do this to their daughter. Given the same, the Tribunal did not accept that the first appellant's children would be at risk of harm from their father on return to Malaysia: at T[142]. 11 With respect to the first appellant's claim to fear harm on the grounds of her ethnicity and as a single mother, the Tribunal rejected this claim noting that it was not supported by country information nor by the appellants' evidence: at T[143]-[153]. 12 In relation to the first appellant's claim to fear harm on the basis of her religious beliefs and political activity, on the basis of country information, the Tribunal did not accept the first appellant's claim to fear harm for reason of her religion or possible future religious conversion (at T[154]-[155]), or for reason of her political activity (at T[156]-[163]). 13 Finally, with respect to the first appellant's claimed fear of harm from her family, the Tribunal accepted that the first appellant had a strained relationship with her parents and other family members: at T[169]. However, the Tribunal did not accept that the first appellant would be harmed on that basis: at T[164]-[170]. 14 Ultimately, the Tribunal was not satisfied that the first appellant met the refugee criterion and, for the same reasons, the Tribunal was not satisfied that the first appellant met the complementary protection criterion: at T[171]-[172].

Grounds of appeal 15 By amended notice of appeal dated 7 November 2021, the grounds of appeal were as follows: 1. The court supplied a (Chinese) Mandarin interpreter but what was required was a (Malaysian) Mandarin interpreter. The Appellant feels the interpreter did not correctly translate her evidence. This meant that the Appellant lost confidence in giving evidence. 2. The FCC's conclusions concerning country information were irrational and not reasonable [sic] formed on the basis of evidence. See annexure CYC3 to Affidavit 2 of [the first appellant] sworn on 18 July 2021. 3. There is additional evidence supplied in annexures CYC1 and CYC2 to Affidavit 1 of [the first appellant] sworn on 18 July 2021. 4. There is additional evidence in annexures CYC4, CYC5, CYC6, CYC7, CYC8, CYC9, CYC10, CYC11, CYC12, CYC13 and CYC14 to Affidavit 3 of [the first appellant], sworn on 7 November 2021. 5. In the reasons for the judgement it is noted in points 23 and 24 that although the application stated "The AAT's conclusion concerning country information were irrational and not reasonable formed on the basis of evidence. See Attachment 'A'.", however there was no Attachment 'A'. The Appellant cannot explain why Attachment 'A' appears to be empty, and can only explain this by the fact of her lack of legal knowledge and inexperience in checking the sealed document. The statement of claims is on pages 298-313. Supporting information including country information is on pages 314-337. 16 One matter of procedure is noted. Prior to the hearing of the appeal, the appellants sought that a Malaysian Mandarin, rather than a Mandarin, interpreter be provided. After the matter was initially listed for hearing, the appeal was re-listed on 27 November 2023 to accommodate the availability of the Malaysian Mandarin interpreter. Late on Friday 24 November 2023, the Court was informed that the interpreter would no longer be available on 27 November 2023. The Court made inquiries before the hearing as to if or when another Malayasian Mandarin interpreter might be available. It was not able to get any confirmation of the same before the hearing. At the commencement of the hearing, the first appellant was informed of the same. The interpreter confirmed that she was a Mandarin interpreter. The first appellant was informed of her choice to proceed or ask that the matter be adjourned until a Malaysian Mandarin interpreter could be secured. Upon electing to proceed, the first appellant and the interpreter were informed by the Court that either of them could, at any time during the hearing, let the Court know if there were any interpreting difficulties. Neither the first appellant nor the interpreter raised any concerns during the hearing.

Consideration 17 Grounds one, three, four and five were not raised before the primary judge, and grounds four and five were not raised in the original notice of appeal. Accordingly, it is necessary to determine whether leave should be granted. I accept, however, that grounds one and five allege error on the part of the primary judge and therefore grant leave on this basis. 18 However, to the extent that time would need to be extended to rely on grounds four and five, by operation of r 36.10 of the Federal Court Rules 2011 (Cth), I would not grant leave, by reason of the fact that these grounds are without merit. The Court may grant leave for an appellant to raise a new point on appeal if the point has merit and there is not real prejudice to the respondent. However, where there is no adequate explanation for the failure to take the point below, and the point is of doubtful merit, leave should generally be refused: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48]. Given grounds four and five are without merit, I would also have not, if it had been necessary, granted leave to allow these new grounds to be raised, for the reasons set out below.

Ground one 19 By ground one, the appellants contend that they were deprived of procedural fairness by the failure on the part of the FCCA to provide an appropriate interpreter. According to the appellants, the FCCA supplied a Chinese Mandarin interpreter, when what was required was a Malaysian Mandarin interpreter. 20 The first appellant contends that the interpreter "did not correctly translate her evidence" which meant she "lost confidence in giving evidence". In her written submission, she submitted: A Malaysian Mandarin speaker would likely understand a Chinese Mandarin speaker but a Chinese Mandarin speaker might have difficulty understanding a Malaysian Mandarin Speaker in the way that an English person might have difficulty understanding an Australian speaking in Australian slang. The interpreter did not properly understand what I was saying. My Malaysian Mandarin is less educated Mandarin than regular Chinese Mandarin. I felt I could understand what the interpreter was saying but that he did not always understand what I was saying. There was considerable delay in getting a recording of the court case, and this request was initially refused, so were unable to provide a transcript and translation. I did not raise the issue of mistranslation at the time because I was intimidated by the whole trial process. (Emphasis added.) 21 It may be accepted that the absence of adequate interpreting services may give rise to procedural unfairness and/or jurisdictional error: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6. However, it is for the appellants to prove that the service was inadequate. The appellants have not particularised the evidence which is said to have been incorrectly translated, nor how any mistranslation was material to the primary judgment. The appellants have not provided: (a) a transcript of the proceedings; (b) identification of which evidence or submission was incorrectly translated and/or how this adversely affected the first appellant's confidence; (c) evidence that the appellants were in fact assisted by an interpreter in the Chinese, as opposed to Malaysian, Mandarin language; and (d) evidence to explain the difference between the Chinese and Malaysian Mandarin dialects, and the extent to which they are different. 22 At its highest, the appellants submit that the interpreter did not always understand what the first appellant was saying. Without more, the appellants have not proved that the interpreting service provided was inadequate and therefore have not established error below.

Ground two 23 By ground two, the appellants contend that the primary judge's conclusions concerning country information were irrational, and not reasonably formed. 24 The appellants relied upon "Annexure CYC3" to the affidavit of the first appellant sworn on 18 July 2021 (entitled "Affidavit 2"). The first appellant clarified at the appeal hearing that Annexure CYC3 comprised the Court Book below. The Appeal Book replicated the entire Court Book and, accordingly, there was no need for the appellants to in effect apply for leave to rely on this evidence. Accordingly, to the extent that leave was sought, I would refuse leave purely on the basis that it was unnecessary to have duplicate of material which is already before me. 25 The only ground of judicial review advanced before the primary judge was, in essence, that which now forms ground two of this appeal. The primary judge extracted the ground as follows (at [23]): Ground 1 The AAT's conclusions concerning country information were irrational and not reasonably formed on the basis of evidence. See Attachment 'A'. 26 Thereafter the primary judge made the following findings with respect to this ground of review: 24 There was no Attachment A and without particulars this ground invites impressible merits review, as it was a matter for the Tribunal as to what country information it accepted. Indeed, the applicant agreed with the country information concerning no risk of harm by reason of being a Buddhist or Christian. The disagreement as to the country information accepted concerning Chinese ethnicity does not identify any jurisdictional error. Further, that country information was evidence that was before the Tribunal and logically and rationally supported the adverse findings concerning the applicant's claims to fear harm by reason of their Chinese ethnicity. The preference of country information was within the fact finding function of the Tribunal and accordingly the choice of country information was for the Tribunal and disagreement with the same does not give rise to any irrationality or legal unreasonableness. 25 As identified above no jurisdictional error arises by reason of the existence of a certificate or the information subject of the certificate because the applicant suffered no practical injustice. The typographical error in relation to the reference to the psychiatric report does not make out any jurisdictional error. In the context, it is clear that the Tribunal references to Dr Philips was referring to Dr Philip Graham as correctly identified in paragraph 113 by the Tribunal. 26 No jurisdictional error as alleged in Ground 1 has been made out. 27 The appellants contend by this ground that the primary judge's conclusions were irrational and not reasonably formed on the basis of the evidence (being all that was before the FCCA). The FCCA, in attending to its task of judicial review, was not tasked with making factual conclusions regarding the country information. That was the task of the Tribunal when conducting merits review. 28 The primary judge identified correctly that it was the Tribunal's role to undertake a merits review of the appellants' claims. This role was different from the primary judge's role when undertaking judicial review. 29 An appellant must overcome a high hurdle when asserting a decision is irrational or legally unreasonable. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, or if the decision was simply not open on the evidence or there is no logical connection between the decision and the inferences or conclusions drawn: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135] per Crennan and Bell JJ. Where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally or factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] per Wigney J. There is no discernible error comprising illogicality or legal unreasonableness in the review undertaken by the primary judge. 30 The primary judge was correct to identify that "it was a matter for the Tribunal as to what country information it accepted" (at J[24]): The Tribunal's choice of, and preference for, certain country information was a matter for it and was within its fact-finding function: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. 31 The primary judge found that it was open for the Tribunal to find that the country information logically and rationally supported the adverse findings concerning the appellants' claims. His Honour appears to have reached this conclusion in part from the concession made by the appellants, referred to at T[155] in the Tribunal's reasons, which is as follows: …The Tribunal put it to the applicant at hearing that DFAT assesses that Buddhists and indeed Christian's [sic], are generally able to practice their religion without interference in Malaysia and do not face official or societal discrimination on a day-to-day basis. The Tribunal put it to the applicant that regardless of whether they return to Malaysia as Buddhists or Christians, or if they were to convert to Christianity upon return to Malaysia, it does not appear they will be at risk of serious or significant harm. The applicant agreed. In view of this information and given the applicant's response, the Tribunal is satisfied there is not a real chance or a real risk she or her children will suffer serious or significant harm on return to Malaysia on account of their religion. (Emphasis added.) 32 The appellants identified no part of the Court Book below which impugned the primary judge's reasoning regarding the country information. 33 I note that the appellants made the following written submission (which apparently goes to this ground): My ex-husband is a gangster and part of a Chinese gang. The violent and corrupt behaviour of Chinese gangs is frequently mentioned in Malaysian press. I know that I couldn't ask for and receive the support I needed from the Malaysian Police because of the corruption in the Police Force. I genuinely fear for the safety of myself and any members of my family if they return to Malaysia. 34 It is not apparent how this submission coheres with ground two, nor how, by relying on the entirety of the Court Book below, the FCCA's conclusions regarding country information were erroneous. 35 In any event, it is clear that to the extent that the appellants' true claim is with respect to the Tribunal's consideration of country information, the Tribunal had considered country information provided by the appellants: at T[82]-[84]. However, the Tribunal ultimately was not satisfied that the first appellant was at risk of harm from her ex-husband or his associates: at T[110]-[142]. The appellants have not established that these findings were not open to the Tribunal on the material before it.

Grounds three and four: Application to rely on fresh evidence 36 Grounds three and four appear to consist of no more than an application to rely on fresh evidence. The appellants ought to have sought leave pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth). In any event, the fresh evidence was: (a) the affidavit of the first appellant sworn on 18 July 2021 (titled "Affidavit 1") and its accompanying annexures CYC1 and CYC2; and (b) the affidavit of the first appellant sworn on 7 November 2021 (titled "Affidavit 3") and its accompanying annexures CYC4-CYC14. 37 The Court has remedial power under s 27 of the FCA Act to admit fresh evidence so as to ensure that proceedings do not miscarry. Rule 36.57 of the Rules sets out the requirements of an application; however, no application was made here. I accept that I may dispense with the rules requiring the specific form of the application and note the recent observations of the Full Court in BVZ21 v Commonwealth of Australia [2022] FCAFC 122 at [12]: The Court has the power to admit fresh affidavit evidence on an appeal pursuant to s 27(a) of the Federal Court of Australia Act 1976 (Cth). The power to admit further evidence is remedial and its primary purpose is to ensure that proceedings do not miscarry. In exercising the discretion, the Court will normally need to be satisfied that the further evidence, had it been adduced at trial, would very probably have meant that the result would have been different, and further that the party seeking to adduce the evidence was, at trial, unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence: Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [15]-[16] (Griffiths, Mortimer and White JJ). 38 Affidavit 1 contained "updating evidence" not before the primary judge. Annexure CYC1 to Affidavit 1 contains country information concerning minority groups and corruption by public officials in Malaysia. Some of the information is undated, and the balance of the information is dated between 2019 and 24 March 2021. The first appellant has not explained why this evidence was not before the primary judge. 39 Annexure CYC2 in Affidavit 1 contains a message sent from an unidentified person to another person on an unidentified online platform in a foreign language. The message appears to be dated 7 May, and the first appellant in her affidavit states that the message was sent in May 2021. The first appellant provided no evidence to explain what the message says, nor has she provided a certified translation of the document, nor has she explained why this evidence was not before the primary judge. 40 Affidavit 3 annexes 11 character references. The letters attest to the appellants' qualities, the contribution they have made to Australian society and their life in Australia. I have no reason to doubt the appellants' good character and the positive contribution they have made in Australia. However, as referred to above, this Court does not have jurisdiction to determine whether the appellants are granted a visa and the appellants' good character and contribution to the community are not in issue in these proceedings. 41 I will not grant the application to rely on this fresh evidence for the following reasons. None of the documents were before the Tribunal or the primary judge. For such evidence to have been before the primary judge or this Court would be inviting either Court to engage in impermissible merits review.

Ground five 42 By way of ground five, the appellants appear to take issue with the primary judge's conclusion that, when referring to a document filed by the appellants in the primary proceedings, there was no "Attachment 'A'" before the FCCA. 43 This ground does not articulate a ground of appeal from either the Tribunal's reasons or the primary judge's judgment. Rather, it merely seeks to explain why "Attachment 'A'" was not filed in support of the judicial review application before the primary judge. This ground of appeal amounts to a submission and, as it does not articulate appealable error, should be dismissed. 44 However, insofar as the appellants seek to rely on portions of the Court Book that formed part of the Appeal Book, namely "the statement of claims" on "pages 298-313" and "[s]upporting information including country information" on "pages 314-337", the primary judge had that material before him and it is not clear whether his Honour was specifically directed to these portions of the Court Book by the appellants and, even if his Honour was, what error(s) are alleged to have arisen from that material. It appears again that the appellants are inviting this Court to engage in impermissible merits review.

Conclusion 45 For the foregoing reasons, the appeal must be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.

SCHEDULE OF PARTIES NSD 803 of 2021 Appellants Fourth Appellant: BVB17

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