EUQ18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 766

1. The application for judicial review filed on 17 September 2018 be dismissed.
2. The applicant pay the first respondent's costs fixed in the amount of $6,000.
3. The name of the first respondent be amended to "Minister for Immigration and Citizenship".

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).

1. By an application filed on 17 September 2018, the applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 21 August 2017. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a protection (class XA) (subclass 866) visa (visa). The Minister opposes the application. The Tribunal entered a submitting appearance save as to costs and did not participate in the proceedings.

1. The applicant is a citizen of Malaysia who arrived in Australia on 7 October 2016.
2. On 30 December 2016, the applicant made an application for the visa (Court Book (CB) 10- 50). The applicant recorded that she had left Malaysia because she had been threatened mentally and physically by her parents who were forcing her into an arranged marriage with an older man. The applicant claimed that the man had attempted to have sex with her, but she had refused and pushed the man away. The applicant had borrowed money from a friend to fund her trip to Australia.
3. On 24 March 2017, a delegate of the Minister made a decision to refuse to grant the applicant the visa (CB 52-68). The delegate characterised the applicant's claims as "vague and lacking in detail" and unsupported by any evidence. The delegate considered country information and found that it would be open to the applicant to seek assistance from government or non-government support agencies if she required assistance on her return. The delegate was not satisfied that Australia owed the applicant protection obligations under either ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
4. On 8 April 2017, the applicant made an application to the Tribunal for review of the delegate's decision (CB 70-71).
5. On 8 November 2017, the Tribunal invited the applicant to attend a hearing on 11 December 2017 (CB 76-77).
6. On 29 November 2017, the applicant sent an email to the Tribunal in which she requested a Mandarin interpreter for the day of the hearing (CB 78).
7. On 11 December 2017, the applicant attended the hearing and was assisted by an interpreter in the English and Mandarin languages (CB 79-82).

1. On 21 August 2018, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa and produced a written statement of decision and reasons (R) (CB 87-101).
2. After the Tribunal set out the criteria for a protection visa pursuant to s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations), the Tribunal identified the policy guidelines it was required to consider pursuant to Ministerial Direction No. 56 made under s 499 of the Act (R, [3]-[8]).
3. At R [10] the Tribunal recorded its view that adequate state protection was available to the applicant on her return to Malaysia and then proceeded to explain why it had come to this conclusion.
4. The Tribunal set out the applicant's written claims for protection as they had appeared in her 866 form (R, [14]).
5. The Tribunal then recorded what it described as a summary of the applicant's oral testimony and the Tribunal's questions at hearing (R, [16]-[35]). This included evidence that:
   • The applicant indicated that she had a boyfriend for seven years but that they then broke up. The applicant indicated that he broke up with her because she told him about her proposed forced marriage on the basis that her father owed money to a man who is her father's good friend's son. The applicant indicated that her ex-boyfriend, after hearing this story, tried to rape her several times, and then he broke up with her.
   • The applicant then denied her ex-boyfriend tried to rape her. The applicant indicated that it was her ex-boyfriend who was concerned that her father owed money to someone and that her father was asking the applicant to marry the son of the man who the father owed money to. The applicant indicated that her father 'didn't want to have that burden in his mind'.
   • The applicant indicated that her father owed money to her father's friend, but she did not know her father's friend's name. The applicant claimed she had met her father's friend many times, but that she did not know his name, but that 'we all call him uncle'. The applicant claimed the person was just called 'uncle' but he was not actually her uncle. The applicant claimed the person named 'uncle' was elderly - around 70 while his son was around 50 years old (L). The applicant indicated she was 30 years old. The applicant indicated she had met L before, but not many times. She indicated that because of the debt that her father owed 'uncle', her father wanted her to marry L - a person 20 years older than her.
6. The Tribunal noted that it had referred during the hearing to the DFAT country information report of 19 July 2016 that indicated that the Royal Malaysian Police was a professional and effective police force. The Tribunal asked the applicant why she had not gone to the Police to make a report. The applicant acknowledged that she not done so but explained that she had been afraid at the time and had not thought to seek help from the Police. The applicant told the Tribunal that her fear upon return was that family members would force her to marry L.
7. The Tribunal noted that it had general concerns that the applicant in her evidence had been hesitant and that her evidence contained inconsistencies. The Tribunal described the applicant's claims as vague and lacking specific details (R [36]).
8. At R [37] the Tribunal said:

The Tribunal notes with some concern that the applicant appeared to indicate that her ex-boyfriend attempted to sexually assault her 'several times', and then changed her evidence to indicate that her ex-boyfriend did not attempt to sexually assault her at all. The applicant then indicated that the only concern she had was the prospect of being forced to marry L. Despite being prompted during the hearing, the applicant mentioned nothing at all about her claim that L attempted to sexually assault her, as indicated in her written claims.

1. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as defined in s 36(2)(a) of the Act. While the reasoning was dispersed across a number of paragraphs, it reflected what was recorded at R [38], being (emphasis in original):

Further, the Tribunal notes with some concern the applicant's response as to why she did not go to police to report such serious allegations, whether they be forced marriage or attempted sexual assault. The Tribunal finds the applicant's response that she 'never thought about seeking help from the police' does nothing to support her claim that she genuinely feared harm. The Tribunal notes that the applicant has already claimed that she believes that the Malaysian authorities can and will protect her if she returned to Malaysia. Accordingly, the Tribunal does not accept that any of the applicant's claims in this respect are credible and finds that the Malaysian authorities can and will protect her if she returned to Malaysia.

1. The Tribunal also found, on the basis that it had not accepted the applicant's substantive claims to be credible, that it was not satisfied the applicant would satisfy the statutory criterion to engage Australia's complementary protection obligations (R, [47]-[48]).

1. On 28 April 2020, a registrar made orders for the applicant to file and serve any amended application with proper particulars of the grounds of the application, any supplementary court book, and written submissions at least 28 days before the final hearing. The applicant did not file any material in accordance with this order.
2. On 14 November 2024, the applicant appeared at a callover and was assisted by an interpreter in the Malay language. In the notation to the orders made by the registrar, it was recorded that the applicant requested a Mandarin speaking interpreter for the callover. It would appear that the callover did not proceed as a result and was adjourned to a date to be advised.
3. The callover was relisted to 28 November 2024. On that date the applicant participated with the assistance of a Mandarin interpreter. The presiding registrar confirmed the maintenance of earlier made procedural orders, made name change orders for the first and second respondent and confirmed that the applicant had retained a soft copy of the court book.
4. The hearing of the application for judicial review took place before me on 10 April 2025, on which occasion the applicant represented herself with the assistance of an interpreter in the Mandarin and English languages. The Minister was represented by solicitor advocate, Ms Ward.
5. The Minister relied on his written submissions filed on 27 March 2025.
6. The applicant relied upon the following three grounds of application:
   1. Administrative Appeal Tribunal not sensitive on the application and evident that I submitted. I was the victim of the mentally and physically abuse of force marriage and sexual harassment.
   2. During my hearing session, I'm not confident toward the translator (from China) as the language spoken is hard for me to understand and conversation.

(as Malaysia Mandarin and China Mandarin is difference. As a result when I received my decision of refusal some of the information is not accurate as when I told the translator. So I wish if I get another hearing session, I request for a Malay language translator.)

1. And my reason to seek for protection also because of fear return back to Malaysia as I am scared to be forced again to married to the person not my choice and if it happen, I will have a mental and physical abuse which will effect my life and working.

1. The applicant was invited to explain what was wrong with the decision of the Tribunal, including by reference to the matters identified above as her grounds of review.
2. The applicant told the Court that when she gave oral evidence to the Tribunal there had been a misunderstanding or "mismatch" in how the interpreter had explained what the Tribunal said to her on in how the applicant's response had been interpreted.
3. When asked to identify an example in the Tribunal's decision as to where this had occurred, the applicant referred to her evidence (as the Tribunal understood it) that her ex-boyfriend had attempted to rape her several times after hearing the applicant's story about the proposed forced marriage. The applicant explained that she had only discovered this discrepancy when she looked at the Tribunal decision record.
4. The applicant explained that her proficiency in Chinese Mandarin was not that good as she had only a primary school level proficiency.
5. In other respects, the applicant's submissions to the Court involved a repetition of the merits of her substantive protection claims.

1. The Minister submitted that grounds one and three of the application for review could be understood as involving a re-agitation of the applicant's claims for protection and/or an attack on the credibility findings made by the Tribunal.
2. The Minister submitted that the approach adopted by the Tribunal to its consideration of the applicant's claims did not disclose error. This was because it had considered all of the applicant's claims and evidence, it had evaluated those claims and evidence by adopting reasoning that was open to it and made credibility findings that reflected the Tribunal's appraisal of the applicant's evidence as being inconsistent, vague and lacking in specificity.
3. The Minister's submissions directed at ground two of the application contained an acknowledgement that inadequate interpreting services may in some circumstances give rise to procedural unfairness or jurisdictional error (referring to Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6). However, the Minister submitted that the authorities placed parameters around the departure from the standard required to establish error. In particular, interpretation need not be perfect; what is required is that the translation convey the idea or concept being communicated (referring to SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [79]). Further, that an interpretation error will only amount to jurisdictional error if it relates to a matter of significance for the applicant's claim or the Tribunal's decision (referring to SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [34]). In other words, the error must be material.
4. The Minister submitted that the applicant's complaint about the interpreting provided at the hearing was unparticularised and unsupported by evidence and in particular:
   • The applicant had provided no evidence for the claim that the interpreter provided at the hearing was from China or spoke Chinese Mandarin (as distinct from Malay Mandarin);
   • The applicant had provided no evidence as to the alleged differences between Chinese Mandarin and Malaysian Mandarin, nor the extent to which any such differences were relevant to the applicant's evidence before the Tribunal;
   • The applicant had not provided any particulars as to any alleged mistranslations of her evidence before the Tribunal; and
   • The applicant had not provided any evidence about the interpretation of the hearing, such as a transcript of the hearing.
5. The Minister submitted that the same catalogue of deficiencies had been identified by Justice Raper when her Honour dismissed a ground of appeal raising a similar claim in BUY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1511. The Minister submitted that the same result should follow in this case.
6. The Minister's representative did acknowledge that the applicant had, during her submissions to the Court, been able to identify one example of an alleged misinterpretation. The Minister submitted that this alleged misinterpretation suffered from the problems identified above, in that it had not been substantiated through admissible evidence of what had transpired at the hearing. Furthermore, according to the Minister, any confusion that had occurred during the hearing had been cured because the applicant had later withdrawn the evidence about the ex-boyfriend (see R, [20]). The alleged misinterpretation could not give rise to jurisdictional error in these circumstances.

1. I am satisfied that nothing raised by the applicant in her grounds one and three give rise to jurisdictional error. The matters referred to in these grounds, which were not elaborated upon in any meaningful way at hearing, invite the Court to revisit the merits of the applicant's claims for protection which is not the function of this Court on judicial review. Grounds one and three are without merit.
2. As far as ground two is concerned, it is the case that the applicant has failed to put before the Court (beyond her assertion from the bar table) evidence of what occurred at the Tribunal hearing. No transcript was provided and there was no evidence before the Court demonstrating that there was an interpreter in the "wrong" dialect of Mandarin or explaining the differences between the two dialects and there was no evidence about how any such difference (apart from in relation to the one example given) affected the proceeding.
3. These deficiencies are fatal to the applicant's ground two. I note however for completeness that I did give consideration to making an order for production of a translated record of the Tribunal hearing in circumstances where it is clear from the reasons of the Tribunal that it took an adverse view of the applicant's credit for reasons that included the change in her evidence concerning the actions of her ex-boyfriend. The opportunity to correct her evidence was not the panacea that the Minister's representative suggested it was.
4. However, upon reflection and consideration of the Tribunal's reasons as a whole, I am satisfied that any error in interpretation that might have infected the Tribunal's credit findings, was not material. This is because the Tribunal recorded a finding that Malaysian authorities could and would protect the applicant if she returned to Malaysia, which finding was separate and independent to the finding of the Tribunal that the applicant's claims were not credible.

1. I will order in these circumstances that the application for judicial review be dismissed.
2. The Minister sought an order that the applicant pay his costs fixed in the amount of $6,000. The applicant was not able to identify a proper basis to resist the making of this order and where the amount sought is considerably less than the amount that is prescribed in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a matter concluded at final hearing, I consider it appropriate to make a second order in these terms.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.