AFQ19 v Minister for Home Affairs

[2025] FedCFamC2G 241

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AFQ19 v Minister for Home Affairs [2025] FedCFamC2G 241

File number(s):

SYG 114 of 2019

Judgment of:

JUDGE MCCABE

Date of judgment:

25 February 2025

Catchwords:

MIGRATION – review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) – protection visa – whether the Tribunal failed to consider relevant evidence provided in the visa application form – application dismissed.

Legislation:

Migration Act 1958 (Cth) s 36

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352

Division:

Division 2 General Federal Law

Number of paragraphs:

23

Date of hearing:

17 February 2025

Place:

Sydney

Counsel for the Applicant:

Ms M Yu

Solicitor for the First Respondent:

Mr J Hutton, Australian Government Solicitor

Solicitor for the Second Respondent:

Submitting appearance save as to costs

ORDERS

SYG 114 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AFQ19

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MCCABE
DATE OF ORDER:	25 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed.

2.The applicant pay the first respondent’s costs in the fixed amount of $6,000.

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).

REASONS FOR JUDGMENT

JUDGE MCCABE:

1. Ms AFQ19 is the applicant in these proceedings. She is a Fijian citizen. She says Australia owes her protection obligations because of the situation she would face if she were to return to Fiji. A delegate (the delegate) of the Minister for Home Affairs (the minister) refused her claim for a Protection (Subclass 866) visa (protection visa) on 6 January 2016. The Administrative Appeals Tribunal (the Tribunal) affirmed that decision on 20 December 2018. The Tribunal’s decision turns on an adverse credit finding made against the applicant.

2. Many claims for a protection visa depend on evidence provided by the applicant who speaks of personal experience in a foreign country. The foreign countries in question may be wracked by instability and disorder, or clouded in secrecy. At any rate, there will often be a dearth of independent evidence available that can verify or corroborate the applicant’s account. It follows a careful assessment of the applicant’s credit will be important to the outcome of the case.

3. Ms AFQ19’s amended application for judicial review of the Tribunal’s decision sets out a single ground of review. It contends the Tribunal failed to consider relevant evidence when making its assessment of the applicant’s credit. The applicant says the Tribunal concluded the applicant’s account of abuse she experienced at a workplace in Fiji over a five-year period was not credible because she would have left that workplace if things were truly as bad as she claimed. The applicant says that conclusion was reached without considering a cogent explanation in the material that she had offered for not changing jobs.

4. I am not satisfied the Tribunal’s decision is affected by a material jurisdictional error. The application for judicial review must therefore be dismissed. I explain my reasons below.

   BACKGROUND

5. Ms AFQ19 arrived in Australia on a tourist visa on 13 January 2015. On 1 July 2015, she applied for the protection visa. Her application for a protection visa (the form) is reproduced in the court book at pp 2ff. At pp 30-31, the applicant recounted her reasons for claiming protection. She told a brief but troubling tale in the form about abuse, sexual assaults and discrimination she experienced as a single mother in Fiji. She also described the ongoing emotional and psychological harm that resulted. She said she expected all that to recur if she returned to Fiji.

6. Question 94 of the form (at p 31 of the court book) asks whether the applicant had moved or tried to move to another part of the country to seek safety in the face of the toxic behaviour she described. She replied:

   I could move to nowhere because I had a job in [place name in Fiji] … I could not leave my job and let my child starve. Fiji has no social security system. As a single woman without a job, my other option would be to prostitute.

7. The delegate was not persuaded by any of this evidence. In the delegate’s statement of reasons (reproduced in the court book at pp 84ff), the delegate concluded (at p 89) the applicant was not a credible witness because “her testimony [was] vague, evasive, inconsistent, and undocumented by any credible supporting evidence”. The delegate made findings in relation to various factual matters, and observed in relation to her claims about discrimination in the workplace that:

   … the applicant’s inconsistencies in her testimony about her employment and lack of supporting evidence of her true status with her last employer – [name of employer], is a further indicative that the applicant is not a credible witness.

8. The delegate refused to grant a protection visa because they were not satisfied the applicant had established she met the criteria in s 36(2) of the Migration Act 1958 (Cth) (the Act).

   THE TRIBUNAL’S DECISION

9. The applicant appeared before the Tribunal and gave evidence with her representative on 6 June 2019. The Tribunal’s decision affirming the delegate’s decision under review is reproduced in the court book at pp 245ff.

10. The decision commences with an uncontroversial discussion of the criteria for granting a protection visa. The Tribunal then turns to consider the claims and evidence. It provides a summary of the material given to the Department of Home Affairs, including the contents of the protection visa application and personal particulars form – although the Tribunal did not at that point mention the answer to Question 94 which I have quoted above. The Tribunal then refers to the material provided in connection with the Tribunal’s review. The Tribunal’s evaluation of that material commences at [25] of its reasons.  At [29], the Tribunal said it did not find the applicant to be a credible witness. It explained its reasons for that credit finding in general terms between [30]-[38] before proceeding to make specific findings about the claims relating to violence and discrimination.

11. Ms Yu, counsel for the applicant, focused on the Tribunal’s observations at [43] of its reasons in relation to the applicant’s claim she had experienced discrimination at work. I reproduce that paragraph below together with paragraph [42], which lends context:

    42.I questioned whether the applicant herself had faced or would face discrimination as a woman or single mother amounting to serious harm or significant harm given she had been able to study, work, travel and raise her son as a single mother. The applicant responded that she was not able complete university because the rape affected her thoughts, and that she travelled because she was tired of it all and wanted a break but when she returned to Fiji all her fears returned. Questioned further about past discrimination she has experienced the applicant indicated that when she worked at [place of employment] she was called a slut every day and a bitch frequently, mostly by the men, and when she went out with guys and told them she was a single mother they would laugh at her so she stopped having relationships. She said she did not make a workplace complaint or seek other employment because there was no grievance or complaints policy and unlike Australia it is hard to get another job in Fiji after you leave a job. She had also testified during the hearing that she was disgraceful to her family for getting pregnant and not having a husband, was looked down upon, and had feared being teased and that men might think they could take advantage of her because she had a child.

    43.I do not accept that the applicant was called a slut every day and a bitch frequently when she worked at [place of employment] because of her general lack of credibility and because I do not find it credible that the applicant would have continued working at [place of employment] for 5 years if she was subjected to such derogatory name calling on a daily and frequent basis. I expect that if the applicant was subjected to such discrimination she would have found another job. She testified that she did not leave [place of employment] due to the discrimination because it is hard to find a job in Fiji when you leave your previous job. That does not explain why the applicant did not look for and find another job to move to before leaving [place of employment]. Further, the applicant has not claimed that she was subjected to such discrimination and name-calling at her previous workplaces which indicates it was possible for her to employment where she would not have been subjected to such treatment. Thus, on the evidence before me I find that the applicant was not subjected to discrimination or harm by work colleagues because she was a single mother and/or woman which amounted to serious harm or significant harm as defined in s.36(2A). It is plausible that the applicant’s family considered it disgraceful that she had a child outside marriage, that other members of society including men who asked her out may have regarded it disgraceful. I do not however consider that to rise to the level or serious harm or to amount to significant harm as defined in s.36(2A).

12. Ms Yu points out there is no express reference in those passages to the applicant’s answer to Question 94 in the claim for a protection visa – although I note in [42] the applicant is recorded as saying “it is hard to get another job in Fiji after you leave a job”. That evidence is consistent with what was said in answer to Question 94, albeit there are more particulars included in the form.

13. The Tribunal concluded the applicant was unable to satisfy the criteria in s 36(2) of the Act given the findings of fact that the Tribunal made: [52]-[54].

    THE GROUNDS OF REVIEW

14. I have already explained the amended application only included one ground of review – namely that the Tribunal erred when it reached the conclusion recorded in [43] without regard to the explanation provided in Question 94 of the form.

15. Ms Yu referred in her written submissions to a string of authorities for the proposition that a decision-maker who is required to consider a claim or apply criteria “must engage in an active intellectual process directed at that claim or criteria”: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) at [45] per Griffiths, White and Bromwich JJ and the cases cited therein. Ms Yu argued the failure to expressly refer to the contents of the answer to Question 94 in the relevant form bespeaks a want of intellectual engagement that indicates a material jurisdictional error. As I understand Ms Yu’s argument, the error would be material because the finding as to credit was based in part on the Tribunal’s finding it was unlikely the applicant would have stayed in her workplace if the allegations were true. Ms Yu suggests if the Tribunal had considered the explanation offered by the applicant in her answer to Question 94 which was before the Tribunal, the assessment of credit may have been different, and led a different outcome on the review.

16. There is more to the extract I have quoted from [45] of the Full Court’s decision in Carrascalao. The Court went on in that paragraph to observe:

    This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ …

17. A different Full Court made essentially the same point in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593. In that case, French, Sackville and Hely JJ explained (at [46]):

    46It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. 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.

18. The minister drew my attention to the cautionary note contained in the next paragraph in that decision, which said:

    47The 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. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

19. The minister said there was no particular reason for the Tribunal in this case to refer to the answers to Question 94 because that material merely went to the question of whether the applicant could relocate. It was not (at least initially) offered as evidence in direct support of a claim against the criteria in s 36(2). Mr Hutton, the minister’s solicitor, argued that in any event it is clear the Tribunal did refer to and consider the substance of the answer offered to Question 94 in the course of its deliberations. The minister noted the Tribunal expressly observed (at [41] of its reasons) the applicant had said “she did not make a workplace complaint or seek other employment because there was no grievance or complaints policy and unlike Australia it is hard to get another job in Fiji after you leave a job”.

20. I agree that reading [43] in isolation might leave one to wonder if the Tribunal engaged with the answer to Question 94 in the form. I accept that material would be important to the consideration of credit given it provides context to the applicant’s claim that she endured years of harassment in her workplace. But when one reads the Tribunal’s reasons as a whole – and if one accepts they are not to be read with an eye to error – I am satisfied the reference in [42] to the substance of the answer to Question 94 provides reason to believe the Tribunal did take that material into account. I acknowledge the Tribunal did not give that evidence much weight, but the assignment of weight is a matter for the Tribunal.

21. The Tribunal referred to several criticisms of the applicant’s evidence as it made its adverse credit assessment. The Tribunal was clearly not impressed by the applicant’s evidence in relation to her experiences in the workplace even as it acknowledged she had offered reasons for not leaving that job. The fact the Tribunal did not quote directly from the answer she gave to Question 94 does not, of itself, justify an inference that the Tribunal ignored the evidence or was unaware of it.

    CONCLUSION

22. I accept a differently-constituted Tribunal might have dealt with these matters differently. But that is not the test. I am not satisfied the applicant’s single ground of review has been made out. The application for judicial review must therefore be dismissed.

23. I discussed the question of costs at the end of the hearing. Each party accepted that costs should follow the event. I agree that is appropriate in this case. Mr Hutton said the minister sought an award of costs in the fixed amount of $6,000. He noted that amount was less than the amount indicated in the Court’s scale but reflected the amount of costs actually incurred in this case. I accept that is so, and I will make an order in those terms.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

Associate:

Dated:       25 February 2025