Adf17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1328

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1328

File number(s):	SYG 79 of 2017
Judgment of:	JUDGE STEET
Date of judgment:	15 June 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal misapplied the relevant law – whether the Tribunal decision was illogical, irrational and/or legally unreasonable – no jurisdictional error found – application dismissed
Legislation:	Migration Act 1958 (Cth), ss 5J(5), 36(2)(a), 36(2)(aa), 438, 476
Number of paragraphs:	21
Date of Hearing:	15 June 2021
Place:	Sydney
Solicitors for the applicant:	In person.
Solicitors for the respondent:	Ms A Zinn, Mills Oakley.

ORDERS

SYG 79 of 2017

BETWEEN:

ADF17
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE STEET
DATE OF ORDER:	15 JUNE 2021

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the court dispenses with the need for the filing of any further document in that regard.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

REASONS FOR JUDGMENT

Judge Street:

Introduction

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 15 December 2016, affirming a decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Protection (Class XA) visa (“the Protection Visa”). 

   Background

2. The applicant is a citizen of Malaysia and claims were assessed against that country.  On 13 October 2006, the applicant was first granted a visitor visa and entered Australia on 24 October 2006.  The applicant departed within the visa period and was granted a further visitor visa on 10 January 2012, and entered Australia on 2 March 2012 and departed within the visitor period. 

3. On 7 March 2015, the applicant was granted a further Electronic Travel Authority Subclass 601 visa (“the ETA Visa”) and entered Australia on 29 March 2015.  That visa expired on 29 June 2015.The applicant then became an unlawful non-citizen until she applied for protection on 10 November 2015.  In summary, the applicant claims to fear harm because of her ethnicity, being Chinese, and because of her experience and harassment at the hands of a Customs officer.

4. On 10 March 2016, the delegate found that the applicant failed to meet the criteria for the grant of the Protection Visa. On 12 April 2016, the applicant applied for a review. 

5. There was a certificate issued under s 438 of the Act dated 14 April 2016, in respect of documents which were of an administrative nature. The applicant suffered no practical injustice in the conduct of the review by reason of the certificate or the information the subject of the certificate.  By letter dated 16 November 2016, the applicant was invited to and attended a hearing on 9 December 2016 to give evidence and present arguments.

6. The Tribunal identified the background to the application for review and set out the relevant law, including in an attachment incorporated by pagination in the Tribunal’s reasons.  The Tribunal accepted that the applicant was sexually harassed by a Customs officer and was verbally and physically assaulted by that officer on one occasion.  The Tribunal also accepted the applicant’s claim that the police did not take action against the Customs officer after she lodged a complaint.  The Tribunal accepted the applicant’s evidence that her sister sold the business in Malaysia in April/May 2015.

7. The Tribunal made, in those circumstances, a finding that the applicant is no longer in a position where she will have contact with the particular Customs officer. The Tribunal did not accept that the harm the applicant suffered from the Customs officer was by reason of her Chinese ethnicity. The Tribunal accepted that the applicant was possibly the subject of discrimination by the police, either as a woman who reported sexual harassment or due to her ethnicity. The Tribunal was not, however, satisfied that that discrimination by the police was one whereby she suffered serious harm, having regard to the definitions in s 5J(5) of the Act.

8. The Tribunal was not satisfied the applicant had a well-founded fear of persecution, and found that there is no real risk that the applicant will be threatened, harassed, detained or otherwise persecuted if she returns to Malaysia now or in the reasonably foreseeable future. The Tribunal found the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act. The Tribunal also found there are no substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk she will suffer significant harm. The Tribunal found the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act, and affirmed the decision under review.

   Before the Court

9. These proceedings were commenced on 11 January 2017.  On 10 March 2017, a Judge of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

10. On 23 January 2018, a Judge of this Court stood the matter over for a call over or the fixing of a final hearing date, and the matter was then placed in the national migration docket and was not allocated to this Court until May 2021

11. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing, and the applicant confirmed she understood the explanation given by the Court.

12. The applicant mistakenly made reference to not having documents, by reason of which she was not believed, which does not reflect the findings made by the Tribunal. 

13. The applicant maintained that she had a fear in relation to the Customs officer if she returned to Malaysia.  That claim was the subject of consideration and adverse findings made by the Tribunal.  The Tribunal found that because the applicant’s sister’s business had been sold, the applicant is no longer in a position where she will have contact with that particular Customs officer.  That was a finding that was open to the Tribunal for the reasons given by the Tribunal.  The adverse finding cannot be said to be illogical, irrational or legally unreasonable. The applicant’s disagreement with the adverse finding does not identify any jurisdictional error.

14. The applicant otherwise made reference to the time in which she has been in Australia and to the COVID-19 pandemic in Malaysia, which in substance invited the Court to determine the matter on compassionate or discretionary grounds.  The Court has no power to do so.  Further, the COVID-19 pandemic was not a matter that was before the Tribunal, and accordingly, is not capable of giving rise to any jurisdictional error.  The applicant’s submissions otherwise invited impermissible merits review.  Nothing said by the applicant identified any jurisdictional error.

    The Grounds

15. On 11 January 2017, the applicant applied for review of the Tribunal’s decision and raised two grounds.

16. The grounds in the application are as follows:

    Ground 1

    The Tribunal “did not apply the law correctly” when it found that she would not be harmed on return to Malaysia because it had accepted that she was harassed by the customs officer and discriminated against by the Malaysian police.

    Ground 2

    The Tribunal did not “properly consider information” because the Tribunal had cited information that women in Malaysia faced a high risk of societal and official discrimination and violence and serious sexual harassment in the workplace.

    Ground 1

17. In relation to Ground 1, the Tribunal correctly identified the relevant law. On the face of the Tribunal’s reasons, the Tribunal made adverse findings that were open to it for the reasons given by the Tribunal – namely, that the applicant will not encounter the Customs officer again because her sister had sold the business.  In these circumstances, the Tribunal’s adverse findings were dispositive of the applicant’s claims.  Further, the Tribunal’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence.  The applicant’s disagreement with the adverse findings does not identify any jurisdictional error.  The Court also accepts the first respondent’s submission that this was not a case where the Tribunal determined the matter on the basis of the ability to relocate. 

18. No jurisdictional error is made out by Ground 1.

    Ground 2

19. In relation to Ground 2, the Tribunal did identify country information in relation to discrimination against women in Malaysia, but was not satisfied that the result of the discrimination by the police was one whereby she suffered serious harm, having regard to the definitions in the Act.  In these circumstances, it was a matter for the Tribunal to determine what country information it identified.  Further, the Tribunal was not required to refer to every piece of country information before it.  The adverse finding in relation to discrimination due to the applicant’s gender was squarely considered by reference to the country information identified at paragraph 35 and subsumed within the adverse findings found in paragraphs 37, 38, 39, 43 and 44 of the Tribunal’s Decision.

20. Accordingly, no jurisdictional error is made out by Ground 2.   

21. As the application has failed to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 15 June 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       8 October 2021