Ada18 v Minister for Home Affairs
[2020] FCCA 2051
•6 August 2020
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 AWA15 v Minister for Immigration [2018] FCA 604 BGN16 v Minister for Home Affairs [2019] FCA 78 |
| 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 the Akan and English languages and that she had lived in Accra, the capital of Ghana, from her birth in 1995 until she came to Australia in June 2011. Her claim to protection was based on her fear that if she returned to Ghana her family would want to perform female genital mutilation (FGM) on her. In response to questions 44 to 49, the Applicant advanced the following claims:
a)she had left Ghana with her mother who was sponsored by the mother’s husband (Mr Samuel) who was living in Australia and who was the step-father of the Applicant;
b)at the time she had left Ghana her family there had wanted to perform FGM on her. However, her mother’s intervention stopped the family members from performing FGM on her;
c)her mother had changed her mind and wanted the Applicant to return to Ghana to undergo “such barbaric practice” on her;
d)she has not experienced any such harm in Ghana, but that harm was imminent but for her departure from Ghana;
e)her mother has now connived with the rest of the Applicant’s family members to have her undergo FGM upon her return to Ghana and her mother had decided to send her back to Ghana and for that reason had informed the Department of the Minister (Department) that the Applicant was not her daughter. This ultimately led to the ending of the mother’s relationship with Mr Samuel in Australia, who had become upset and angry at her mother’s actions and which caused the ending of the mother’s and Mr Samuel’s relationship in Australia;
f)if she were to go back to Ghana the family would perform FGM on her. FGM is not only barbaric and inhumane, but can lead to possible death or infectious diseases and there are countless people who have lost their life due to FGM;
g)it is a customary practice that all young girls in her tribe (i.e. the Krobo tribe) have to undergo FGM and it is a tradition that mothers who prevent their daughters from undergoing FGM “are to be cursed”. The mothers, in order not to be cursed, normally give in to pressure from the Elders. One would have thought that the Applicant’s mother, who had the chance to live in Australia, would learn otherwise, but unfortunately she is adamant that the Applicant should return to Ghana; and
h)the authorities in Ghana cannot protect anyone from FGM, with children being vulnerable. Government and other security agencies do not stand in the way of FGM because they see it as being part of social life and as a practice inseparable from the Ghanaian people who cherish their customs which have existed since time immemorial.
Relevant Law and Criteria Applicable to the Grant of a Protection visa
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia 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; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 25 January 2016.
In her Decision Record the Delegate summarised the Applicant’s claims to protection as made in her Protection visa application form, the claims raised at the interview with the Delegate and the additional documents submitted in support of her Protection visa application.
At the interview with the Delegate the Applicant said that she was from the Krobo tribe from the eastern region of Ghana. She had last spoken to her biological father in November 2015; she also has two brothers and grandparents in Ghana and she arrived in Australia as a dependant of her mother, but is no longer in contact with her and last spoke to her in 2014. The mother had made the threat of FGM to the Applicant some two years previously and before the breakup of the mother’s relationship with Mr Samuel. The Applicant claimed that her mother blamed the breakup of the relationship with Mr Samuel on the Applicant because by refusing to undergo FGM the Applicant had brought a curse on her mother. The Applicant stated that FGM is performed on girls in the Krobo tribe between the ages of 16 years and 22 years.
In her Decision Record the Delegate accepted that the Applicant was from the Krobo tribe, had lived in Accra all her life before leaving Ghana and was claiming to be a woman forced to have FGM in Ghana. However, the Delegate was of the view that the Applicant had made unconvincing and inconsistent claims, was not satisfied with the credibility or veracity of those claims and found that country information indicated that adult women in Ghana were not at risk of having FGM perpetrated against them.
Accordingly, the Delegate was not satisfied that the Applicant was a person to whom Australia owed protection obligations either under the Refugees Convention criterion or the complementary protection criterion and refused to grant a Protection visa to the Applicant.
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.
Decision of Tribunal
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)
At [19] of its Decision Record the Tribunal recorded as follows:
[19]The Tribunal discussed with the applicant her claim that her family tried to perform FGM on her before she left Ghana. She gave evidence that she is a member of the Krobo tribe in Ghana. She stated that FGM is practised in the Krobo tribe even though it is illegal to do so in Ghana. She then stated that she does not know any girls in Ghana who have had FGM performed on them. She stated that no one in her class had undergone FGM and she was not aware of anyone in her school who had undergone FGM. She stated that her mother had undergone FGM at the age of 16 years and was opposed to her undergoing FGM.
(emphasis added)
From [18] – [41] of its Decision Record the Tribunal recorded the other evidence of the Applicant at the Tribunal hearing and the discussion which took place concerning that evidence. From [42] – [46] the Tribunal recorded relevant country information in connection with FGM in Ghana. From [47] – [57] the Tribunal recorded its findings.
The Tribunal accepted the following aspects of the Applicant's claim:
a)she was born in June 1991 in Accra, Ghana, and is a member of the Krobo tribe: see [48] of the Decision Record;
b)she lived in Accra from birth until she left Ghana in June 2011 to travel to Australia and went to school in Accra: see [48] of the Decision Record. This finding was consistent with the Applicant’s Protection visa application form (see [4] above), but involved a rejection of her assertion at the Tribunal hearing that she had left Accra when she was eight years of age to go to her father’s hometown of Pinpinsu in the eastern region of Ghana: see [21] – [23] of the Decision Record;
c)her mother and father in Ghana opposed FGM which she had not undergone in Ghana: see [48] of the Decision Record;
d)she did not know any girls in Ghana who had undergone FGM: see [50] of the Decision Record;
e)her relationship with her mother had broken down and she has not had any contact with her since 2014: see [52] of the Decision Record; and
f)she has maintained a relationship with her biological father, who lives in Accra and works as an accountant for a shipping company: see [52] of the Decision Record.
Based on country information in relation to FGM in Ghana the Tribunal made the following findings:
a)the practise of FGM in the Krobo tribe is negligible: see [50] of the Decision Record;
b)it was not customary that all young girls in the Krobo tribe undergo FGM: see [50] of the Decision Record;
c)the practice of FGM is most prevalent in the north west and north east regions of Ghana, but Accra is in the south of Ghana: see [50] of the Decision Record;
d)legislation was passed in Ghana in 1994 to criminalise the practice of FGM with the penalties for performing FGM being increased in 2007, and the Ghanaian authorities have successfully prosecuted people who breached Ghanaian law and have performed FGM: see [51] of the Decision Record; and
e)accordingly, it was not accepted “that the Ghanaian authorities cannot or will not protect the applicant if she returns to Ghana and that the government or other security agencies do not stand in the way of customary practices because they are part of life in society”: see [51] of the Decision Record.
At [47] of its Decision Record the Tribunal recorded its general finding in relation to the Applicant as follows:
[47]Having considered all the applicant's claims and all the evidence, the Tribunal finds aspects of her evidence to be vague, contradictory, implausible, unconvincing and inconsistent with country information. She made new claims during the hearing. The Tribunal finds that she is not a witness of truth. The Tribunal finds that she fabricated her material claims for the purpose of obtaining a Protection visa.
Specifically, the Tribunal did not accept that:
a)prior to the Applicant’s departure from Ghana members of her extended family wanted to perform FGM on her but were prevented from doing so by her mother: see [49] of the Decision Record. See also [33] – [37] of the Decision Record;
b)the mother of the Applicant had changed her mind and wants her to return to Ghana to undergo FGM: see [49] of the Decision Record. See also [33] – [37] of the Decision Record;
c)the Applicant’s mother has connived with the rest of the Applicant’s family members or members of her father’s extended family to have FGM performed on her if she returned to Ghana: see [49] of the Decision Record. See also [33] – [37] of the Decision Record;
d)that the Applicant’s father is in debt and she sends him money: see [52] of the Decision Record. See also [39] and [41] of the Decision Record; and
e)that the Applicant will have nowhere to live in Ghana or that she will not be able to sustain herself if she returns to Ghana in the reasonably foreseeable future: see [52] of the Decision Record. See also [39] and [41] of the Decision Record.
Accordingly, at [53] and [56] of its Decision Record the Tribunal recorded that having considered all of the Applicant’s claims individually and cumulatively the Applicant did not satisfy respectively either the Refugees Convention criterion or the complementary protection criterion and affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.
Grounds of Attack on Decision of Tribunal in this Court
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.
Consideration
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)
In my view this Ground is not made out because the assertion that the Applicant’s mother had undergone FGM at the age of 16 was never identified by the Applicant as the basis, either squarely, expressly or implicitly, articulated or unarticulated, of her claim to protection. Her claim to protection was never advanced or argued on the footing that her mother’s experiences had any implications for the Applicant and in my view the Ground seeks to impermissibly recast the Applicant’s claim to protection on a basis that was not actually made, either before the Delegate or the Tribunal. As Gleeson CJ said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at 479 [1]:
[1]… Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process
The Applicant never mentioned in her Protection visa application form that her mother had undergone FGM. The first reference to the mother having undergone FGM was by Mr Samuel in his Statutory Declaration (see [15] above) when he deposed to the mother revealing to him that she had undergone FGM at the age of 16, seemingly in justification of the possibility or appropriateness of “girls as old as 22 years” undergoing FGM.
The only other mention of this topic was by the Applicant at the Tribunal hearing, as recorded at [19] of the Decision Record of the Tribunal (reproduced at [16] above), in the context of the Applicant giving evidence about the wish of her family to have her undergo FGM in Ghana before she came to Australia. At the Tribunal hearing the Applicant was signifying that the fact that her mother had undergone FGM at the age of 16 years in Ghana was a reason that her mother was previously opposed to the Applicant undergoing FGM there.
In other words, Mr Samuel’s evidence in his Statutory Declaration was that the Applicant’s mother referred to having undergone FGM at 16 years in justification of a young lady of around the Applicant’s age still being able undergo FGM, whereas the Applicant at the Tribunal hearing stated that the fact that her mother had undergone FGM at the age of 16 years had motivated her mother’s opposition to the Applicant undergoing FGM. Neither of these references bore in any relevantly material way on the Applicant’s claim to fear that she herself personally would be forced to undergo FGM if she returned to Ghana.
In my view, the topic of the Applicant’s mother having undergone FGM at the age of 16 years in Ghana was never argued or advanced as material to the Applicant’s claim to protection, and hence the Tribunal in its Decision Record made no further reference to the topic because it did not consider it to be material to its decision and no jurisdictional error was committed thereby. The Tribunal meaningfully recognised and considered the Applicant’s claim to protection as being that of a woman who faced FGM if she returned to Ghana perforce of her family there. That claim was rejected on the basis of findings and reasoning which it is not suggested were irrational, illogical, legally unreasonable or without an intelligible justification.
Further and in any event, even if I was wrong in so concluding, the Ground would still fail because the Applicant’s claim to fear serious and significant harm was rejected by the Tribunal root and branch in factual findings which “necessarily and inevitably denied any other basis for protection” and it was not necessary for the Tribunal to go further and descend into a greater level of particularity or to respond to any claim by the Applicant that she was a member of a particular social group: see the discussion by Griffiths J in BGN16 v Minister for Home Affairs [2019] FCA 78 at [28] – [29].
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error, and the Amended Application is to be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 6 August 2020
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