Ada18 v Minister for Home Affairs - [2020] FCCA 2051

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADA18 v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 2051

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration not to grant to the Applicant a Protection (Class XA) (Subclass 866) visa – Applicant claims that the Tribunal had overlooked her claim to be a woman whose mother had undergone female genital mutilation – such a claim never identified by the Applicant as the basis, either squarely, expressly or implicitly, articulated or unarticulated, of her claim to protection before the Tribunal – jurisdictional error not made out – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.65

Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

AWA15 v Minister for Immigration [2018] FCA 604

BGN16 v Minister for Home Affairs [2019] FCA 78
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1

Applicant:

ADA18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 81 of 2018

Judgment of:

Judge Dowdy

Hearing date:

24 September 2019

Delivered at:

Sydney

Delivered on:

6 August 2020

REPRESENTATION

Counsel for the Applicant:

Ms E. Anang

Solicitors for the Applicant:

Lawyer-Up Pty Ltd

Counsel for the First Respondent:

Mr L. Dennis

Solicitors for the First Respondent:

Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Amended Application filed in Court on 24 September 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 81 of 2018

ADA18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a female citizen of Ghana aged 25 years.
By Amended Application filed in Court on 24 September 2019 she seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 15 December 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 29 January 2016 refusing to grant to her a Protection (Class XA) (Subclass 866) visa (Protection visa) under s.65 of the Migration Act 1958 (Cth) (the Act).

Background

The Applicant departed Ghana on 17 June 2011 and arrived in Australia on 19 June 2011 when she was 16 years of age as a dependant on her sponsored mother’s Prospective Marriage (Class TO) (Subclass 300) visa. She attended Merrylands High School in Sydney from July 2011 until September 2013.

Claims to Protection

The Applicant applied through her migration agent for the Protection visa on 17 December 2014. In her Protection visa application form the Applicant stated that she could speak, read and write…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 2051
Decision Date: 6 August 2020

CaseChat Overview and Summary

The applicant, Ada18, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the Delegate of the Minister for Immigration's refusal to grant her a Protection (Class XA) (Subclass 866) visa. The applicant contended that the Tribunal had overlooked a crucial element of her protection claim: that her mother had undergone female genital mutilation (FGM). This claim, it was argued, formed a basis for her membership in a particular social group and thus her entitlement to protection. The matter was heard by Dowdy J in the Federal Court of Australia.

The central legal issue before the Court was whether the Tribunal had committed jurisdictional error by failing to consider and deal with all the essential elements of the applicant's protection claims, specifically the assertion that her mother's experience with FGM was a relevant factor in her own claim for protection. The applicant argued that this specific element, identified as Ground 3(a)(iii) in her amended application, was overlooked by the Tribunal, despite being an essential component of her asserted membership in particular social groups.

Dowdy J applied the principles that an administrative decision-maker must address the case presented by the material before it, and a failure to make a finding on a substantial, clearly articulated argument can constitute a failure to afford procedural fairness and a constructive failure to exercise jurisdiction. However, the Court also emphasised that decisions must be read fairly and as a whole, and an inference of failure to consider an issue should not be readily drawn, particularly where the reasons are otherwise comprehensive and the issue was at least identified. The Court noted that the applicant's claim regarding her mother's FGM was not articulated as a distinct basis for protection before the Tribunal, either squarely, expressly, or implicitly. The Tribunal's summary of the applicant's claims focused on her fear of undergoing FGM herself, and the evidence presented, including a statutory declaration, did not clearly establish that the applicant's mother's FGM was presented as a separate or essential element of the applicant's protection claim to the Tribunal.

The application for judicial review was dismissed as jurisdictional error was not made out.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

At the hearing, when Ms Anang appeared for the Applicant and Mr Dennis appeared for the Minister, I granted leave to the Applicant to file an Amended Application which presses only the following Ground:3. The Tribunal failed to consider and deal with all the essential elements of the Applicant’s claims for protection therefore failed to discharge its obligations under s414 of the Migration Act 1958 and committed a jurisdictional error. Particulars(a) The essential elements of the Applicant’s claims for protection can be surmised as follows:i. The Applicant is a member of the Krobo tribe in Ghana (Paragraph 19 of the Tribunal’s decision record); ii. Female Genital Mutilation (FGM) is practised in the Krobo Tribe even though it is illegal to so in Ghana (paragraph 19 of the Tribunal decision record); iii. The Applicant’s mother, a Ghanaian national, underwent FGM at the age of 16 (paragraph 19 of the Tribunal decision record); iv. Prior to the Applicant leaving Ghana for Australia, when she was about 16 years old, her extended family attempted to perform FGM on her (paragraph 20 of the Tribunal decision record); v. The Applicant’s mother connived with relatives in Ghana to have FGM performed on the Applicant if she returned to Ghana (paragraph 34 of the Tribunal’s decision record); vi. If the Applicant returns to Ghana, the Applicant would have nowhere to live, have difficulties finding a job and she would be unable to sustain herself (paragraph 38 of the Tribunal’s decision record).(b) The Tribunal considered and dealt with the essential elements of the Applicant’s claims for protection identified above at (a) (i), (ii), (iv), (v) and (vi). (c) The Tribunal failed to consider and deal with an essential element of the Applicant’s claims for protection identified above at (a) (iii). (emphasis added) In short, the Ground contends that the Tribunal overlooked an essential element of the Applicant’s claim to protection, namely Ground 3(a)(iii) above. In written and oral submissions Ms Anang contended that the Applicant had claimed to be a member of particular social groups, being “women in Ghana forced to undergo FGM” and / or “women in Ghana whose mothers had undergone FGM and who were forced to undergo FGM”. The focus of her submissions was that the Tribunal had overlooked the claim that the Applicant was a woman whose mother had undergone FGM. It is of course a well-established principle that an administrative decision-maker such as the Tribunal is required to deal with the case raised by the material or evidence before it, and where it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 17 – 18 [55] per Black CJ, French and Selway JJ. However, it is also apt to remember that the decision of an administrative decision-maker such as the Tribunal must be read fairly and as a whole, without a fine-tooth comb seeking to identify error. Further, an inference that such a body has failed to consider an issue is not always to be drawn from its failure to expressly deal with that issue in its Decision Record. As the Full Court of the Federal Court of Australia comprised of French J (as his Honour then was), Sackville and Hely JJ stated in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 – 605 [46] – [47]:[46]…The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.[47]The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.(emphasis added)

Ratio Decidendi

Legal Principle Established

I note that on the same date as the decision of the Delegate, namely 29 January 2016, Mr Samuel sent by email to the Department a Statutory Declaration, sworn by him on 28 January 2016 (Statutory Declaration) in support of the Applicant’s Protection visa application. The evidence does not make clear whether the Statutory Declaration was before the Delegate when she made her decision, but it was certainly before the Tribunal as referred to below. The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 14 February 2016 through her migration agent and gave a copy of the Decision Record of the Delegate to the Tribunal at that same time. The Applicant appeared at a hearing before the Tribunal on 20 October 2017 to give evidence and present arguments. At [1] – [11] of its Decision Record the Tribunal summarised the background to the application for review and the relevant statutory framework for the grant of a Protection visa. At [12] of its Decision Record the Tribunal summarised the Applicant’s claim to protection as follows:•She was born on 2 June 1995 and is a citizen of Ghana.• She came to Australia with her mother who was sponsored by her husband. Prior to leaving Ghana her family wanted to perform female genital mutilation (FGM) on her. Her mother intervened and prevented them from doing so. Her mother has now changed her mind and wants her to return to Ghana and have FGM performed on her.• Her mother has connived with the rest of her family members to have FGM performed on her if she returns to Ghana. Her mother informed the Department that she was not her daughter in an attempt to force her to return to Ghana. This lead to the breakdown in the relationship between her mother and her step-father.• She fears that if she returns to Ghana her family will perform FGM on her. It is customary that all young girls in the tribe have to undergo this practice. Mothers who prevent their daughters from undergoing such practises are cursed so mothers give into pressure from elders in order to avoid being cursed. • The authorities cannot protect her if she returns to Ghana. Children are vulnerable and if their parents cannot protect them it is a pity. The government and other security agencies do not stand in the way of customary practices because they are part of life in society. At [13] of its Decision Record the Tribunal noted that it had been provided with the Statutory Declaration of Mr Samuel, the first two paragraphs of which deposed as follows:I sponsored my ex-wife [the Applicant’s mother] and her daughter, [the Applicant]. We were having a blissful marriage life and things were ok for us. We have mapped our future ahead of us and are working tirelessly to achieve our goals in life. All of sudden, our life were torn apart owing to my ex-wife attitudes and behaviour. As usual, all new migrants who settled in a new country will obviously encounter difficulties be it financial, jobs, cultural differences and plethora of other problems.My ex-wife attributed all these problems down to her initial resistance of not allowing her daughter to undergo FGM (female genital mutilation). She therefore confided in me her desire to send her to Ghana for such an operation. She even revealed to me she had her FGM done at the ripe age of 16 and the operation could be done on girls as old as 22 years. I immediately brushed aside her concern and said to her as a Christians we do not belief in such practices. I made it known to her that there is no way [the Applicant] would leave Australia as long as I am married to you.(emphasis added)