MIGRATION – appeal from the Federal Circuit Court of Australia – protection visa – where the appellant claimed to fear harm on return to Egypt for reasons of membership of a particular social group, namely women in Egypt – where the appellant provided evidence of three incidents of sexual assault against her and of the prevalence of gender-based violence and sexual harassment against women in Egypt – where the appellant provided evidence of her personal vulnerability – whether primary judge erred in not concluding that the Tribunal failed to perform its statutory function by failing to deal with a claim or its component integers – appeal allowed
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of…
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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AGLC
AGA16 v MIBP [2018] FCA 628
Case
[2018] FCA 628
Decision Date
CaseChat Overview and Summary
In the appeal AGA16 v MIBP, the appellant challenged the decision of the Federal Circuit Court of Australia, which in turn had reviewed a decision of the Migration Review Tribunal (MRT). The appellant, a citizen of Egypt, applied for a protection visa, claiming that she would be subjected to serious harm on return to her home country due to her membership of a particular social group, namely women in Egypt. The appellant provided evidence of three incidents of sexual assault against her and the prevalence of gender-based violence and sexual harassment against women in Egypt, as well as evidence of her personal vulnerability. The Federal Circuit Court dismissed the appellant's appeal, holding that the Tribunal had considered all the relevant claims and evidence, and therefore had not failed to perform its statutory function.
The central legal issue in this appeal was whether the Tribunal had failed to perform its statutory function by not considering a specific component of the appellant's claim, namely that she would likely experience further instances of sexual harassment or sexual assault, including unwanted physical contact and the threat of gender-based violence, if required to return to Egypt. The appellant submitted that because of her history and medical condition, experiencing further instances of sexual harassment or sexual assault would cause serious harm or significant harm to her. The court needed to decide if the Tribunal had overlooked this aspect of the appellant's claim, which if accepted, would establish that the appellant had a well-founded fear of persecution for a Convention reason.
The court found that the Tribunal had considered the appellant's claim in its entirety, including the evidence and contentions regarding the likelihood of the appellant experiencing further instances of sexual harassment or sexual assault. The court held that the Tribunal's reasons were comprehensive, and the issue had been identified at some point in the decision. Therefore, the court concluded that the Tribunal had not failed to perform its statutory function by not considering the specific component of the appellant's claim. The appeal was dismissed.
No further orders were made by the court beyond requiring the parties to submit any agreed minutes of proposed orders within seven days of the date of the orders, and if no agreement was reached, to submit their proposed orders and outline of submissions within ten days of the date of the orders.
Orders
Orders of the court
1. Within seven days of the date of these orders, the parties submit any agreed minute of proposed orders to give effect to the reasons.
2. In the absence of agreement, each party within 10 days of the date of these orders submit its proposed orders and an outline of submissions (of no more than three pages).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
In support of the application for review, the appellant relied upon statutory declarations and reports from a psychologist and a psychiatrist.The Tribunal’s decision The Tribunal outlined the relevant law at [5]-[20] of the decision record. In the course of the discussion of the relevant law, the Tribunal referred to ss 91R and 91S of the Migration Act 1958 (Cth) and noted that these provisions qualified certain aspects of Article 1A(2) of the Refugees Convention for the purposes of the application of the Migration Act and the Migration Regulations 1994 (Cth) to a particular person. The Tribunal noted that there are four key elements to the Convention definition of “refugee”. The second element referred to by the Tribunal was that the person must fear persecution. The Tribunal stated that under s 91R(1), persecution needed to involve “serious harm” to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). The Tribunal noted that examples of “serious harm” were set out in s 91R(2). (I note that, although s 91R had been repealed at the time of the Tribunal’s decision, it was nevertheless applicable on the basis that the relevant amendments did not apply to applications for protection visas made prior to 16 December 2014.) The Tribunal also discussed the complementary protection criterion. The Tribunal noted that, if a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa). The Tribunal referred to the definition of “significant harm” in s 36(2A). The Tribunal noted that a person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. The Tribunal identified, at [21] of the decision record, the material that was before the Tribunal. This included copies of translated reports of a psychiatrist (which were briefly described by the Tribunal) and a psychologist’s report. The Tribunal summarised, at [22]-[31], the appellant and her husband’s claims. The Tribunal referred to a claim that the appellant and her husband suffered ongoing discrimination in their workplace and generally because they are Copts. The Tribunal described evidence given by the appellant about three incidents of sexual assault. The appellant had given evidence that she had been subjected to two incidents of sexual assault in a public street – one incident in January 2013, the other in March 2013. The appellant had also given evidence that she had been sexually assaulted while walking home from Tahrir Square in April 2013. The appellant’s evidence about these incidents was summarised in [27] and [30] of the decision record. On each occasion, the attacker referred to the appellant’s religion (calling her a Christian or an infidel).
Ratio Decidendi
Legal Principle Established
The appellant appeals to this Court from the orders of the Federal Circuit Court. The sole ground in the amended notice of appeal is as follows:1.The learned trial Judge erred by not finding that the Tribunal failed to perform its statutory function according to law in that it:a.failed to consider the Appellant’s claim to be entitled to a protection visa arising from her membership of a particular social group, constituted by women in Egypt.PARTICULARSThe learned trial Judge erred by not finding that the Tribunal failed to consider the following matters that formed part of the appellant’s claim:ŸIf the appellant was required to return to Egypt, it was likely that the appellant would experience further instances of sexual harassment or sexual assault, including unwanted physical contact and the threat of gender based violence.ŸBecause of her history and medical condition, experiencing further instances of sexual harassment or sexual assault would cause serious harm or significant harm to the appellant.Consideration The relevant legal principles are as follows. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [1], [42]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (Applicant WAEE) at [44]-[47]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS) at [62]. In Applicant WAEE, the Full Court of this Court (French, Sackville and Hely JJ) said at [44]-[47]:44It is central to the exercise of the dispositive powers conferred by s 415 that the Tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss 423, 424, 425 and 426 of the Migration Act.45In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:… a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;(s 36(2)(a) read with s 415(1))The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.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.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.(Emphasis added.)