Alh20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case •

[2021] FCCA 873

•

30 April 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 873

File number(s): PEG 34 of 2020
Judgment of: JUDGE LUCEV
Date of judgment: 30 April 2021
Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Protection (Class XA) (subclass 866) visa – citizen of Cameroon – allegation of domestic violence – allegation of forced religious conversion – whether Tribunal permitted to use old country information – whether Tribunal ought to have had regard to other more recent country information – whether jurisdictional error  
Legislation: Migration Act 1958 (Cth) ss 36(2), 414, 420(a), 424(1), 474, 476
Cases cited:

ACL17 v Minister for Home Affairs & Anor [2019] HCASL 318

ACL17 v Minister for Home Affairs [2019] FCA 753l; (2019) 165 ALD 301

ACL17 v Minister for Immigration & Anor [2018] FCCA 3191

Aporo v Minister for Immigration & Citizenship [2009] FCAFC 123; (2009) 113 ALD 46

Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166

Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424

Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640

Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412

Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547

NAHI v Minister for Immigration & Multicultural Indigenous Affairs [2004] FCAFC 10

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411

Shrestha v Minister for Immigration & Anor [2013] FCCA 710

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300

SZUAL v Minister for Immigration & Anor [2016] FCCA 34

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291; (2005) 87 ALD 333

VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29

Number of paragraphs: 24
Date of last submission: 15 April 2021
Date of hearing: 15 April 2021
Place: Perth
Counsel for the Applicant: Mr Tan
Solicitor for the Applicant: Lily Chen & Associates
Counsel for the First Respondent: Ms E. Tattersall
Solicitor for the First Respondent: Sparke Helmore
For the Second Respondent: Submitting appearance, save as to costs

ORDERS

PEG 34 of 2020
BETWEEN:

ALH20

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

30 APRIL 2021

THE COURT ORDERS THAT:

1.The originating application filed 31 January 2020, as amended by an amended originating application filed 5 May 2020, and as further amended at hearing in the terms set out in the Applicant’s written submissions, be dismissed.

REASONS FOR JUDGMENT

JUDGE LUCEV

INTRODUCTION

  1. The Applicant was born in Cameroon and is a Catholic. Her claim for protection arises from her family circumstances. She alleges that:

    (a)her father is a Muslim who forced her into a marriage with a Muslim man;

    (b)her father and husband attempted to force her to convert to Islam; 

    (c)her husband was extremely violent and she was regularly subjected to physical and sexual violence; and

    (d)there was one child of the marital relationship, but the child was taken away to be raised by her husband’s mother: Court Book (“CB”) 31.

  2. A decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively”) made on 7 January 2020 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant the Applicant a Class XA (subclass 866) Protection visa (“Protection Visa”).

    JUDICAL REVIEW APPLICATION – PROCEDURAL MATTERS

  3. On 31 January 2020, the Applicant filed an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”).

  4. A Registrar of this Court made an order on 26 February 2020 requiring the Applicant to file and serve any amended Judicial Review Application by 21 April 2020. Out of time, the Applicant filed an amended Judicial Review Application on 5 May 2020 (“Amended Judicial Review Application) setting out three grounds of review. The Minister did not oppose an extension of time for the filing of the Amended Judicial Review Application, and at hearing the Court ordered time to be extended. In written submissions filed by the Applicant on 23 March 2021 (“Applicant Submissions”) the Applicant sought to further amend ground 3 of the Amended Judicial Review Application. The Minister did not oppose the amendment, and at hearing the Court granted leave to amend ground 3 of the Amended Judicial Review Application in the terms set out in the Applicant Submissions. Only the amended ground 3 of the Amended Judicial Review Application was pressed at hearing. Ground 3, as amended, is set out immediately below.

    GROUND 3

  5. Ground 3 is as follows:

    The Second Respondent erred in law by relying on outdated country information and news reports.

    Particulars (amended)

    The Tribunal relied principally on country information from 2010 in finding that the Appellant did not face a real chance or risk of harm from her Muslim husband. The Tribunal overlooked or ignored more recent country information which differed materially from the country information consulted. It thereby failed to discharge its task pursuant to s 414 of the Migration Act 1958 (Cth).

    TRIBUNAL DECISION

  6. In the Tribunal Decision the Tribunal found as follows:

    (a)that the Applicant was not a credible witness: CB 185 at [43]. This finding was made based on “significant contradictions, inconsistencies and omissions” in the Applicant’s claims and evidence, her explanations for which had changed over time: CB 185 at [42]. The Tribunal’s concerns and the Applicant’s responses in this regard were comprehensively set out: CB 186-192, [49]-[96];

    (b)that it did not accept any of the Applicant’s claims for protection: CB 192 at [96]. Rather, the Tribunal:

    (i)found that the Applicant’s father did not convert to Islam, and nor did he force the Applicant into a relationship with a Muslim man: CB 185 at [43];

    (ii)found that the Applicant was not a victim of any form of threats or abuse, and nor was she threatened by her father concerning a refusal to convert to Islam: CB 185 at [43] and 191 at [90]-[91];

    (iii)did not accept the Applicant’s claim that she was not involved in the drafting of her visitor visa application in 2015: CB 188-189 at [73];

    (iv)found that the medical report provided in support of the Applicant’s claim to have been hospitalised due to an assault by her husband was not a genuine document: CB 189 at [75], and nor were the birth certificates she provided in respect of the three children she claimed to have had during a previous marriage: CB 190 at [84]; and

    (v)accepted that the Applicant was a Catholic: CB 192-193 at [99], however, did not accept that there was a real chance that she would face persecution if she returned to Cameroon in the immediately foreseeable future for this reason: CB 193 at [101]-[105]; and

    (c)that the Applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Migration Act: CB 194 at [106] and [111].

  7. The Tribunal accordingly affirmed the Delegate’s Decision to refuse the Applicant the Protection Visa: CB 194 at [113].

    APPLICANT’S SUBMISSIONS

  8. The Applicant’s Submissions were as follows:

    (a)the country information relied on by the Tribunal was out of date;

    (b)the country information and news reports relied upon by the Tribunal was outdated and irrelevant to the Applicant’s personal circumstances. The fact that the Tribunal Decision was prepared in January 2020 indicates a failure by the Tribunal to consult the latest country information readily available to the Tribunal, and that amounts to jurisdictional error;

    (c)no rational or logical decision-maker would rely on an outdated country report from 2010 when making a decision in 2020. At the very least, the country information relied upon should be at the time at which the Applicant claimed to be suffering religious violence at the hands of her husband, being 2015;

    (d)the Tribunal failed to have regard to an abundance of recent country information and news reports readily available to it on the current inter-religious situation in Cameroon, including, specifically, the following:

    (i)most prominently, the 2019 ‘Report on International Religious Freedom: Cameroon’ by the US Department of State (“USDOS Cameroon Religious Freedom 2019 Report”) listed a long and varied list of religious assaults on Christian worshippers in various forms including kidnapping of pastors and priests, holding church congregations at gunpoint, burning Christian churches and villages, amongst many other incidents. It concluded by saying:

    “Religious and civil society leaders said the violent conflict in the Northwest and Southwest Regions significantly limited the ability of individuals to worship and engage in other religious practices.”

    (ii)

    a report published by the International Crisis Group in 2015


    (‘Cameroon: The Threat of Religious Radicalism’, 2015, International Crisis Group, 3 September, (“ICG Cameroon Religious Radicalism 2015 Report”) recognised that even though Cameroon has never experienced significant sectarian violence, unlike the neighbouring Nigeria and Central African Republic, “the emergence of radical religious groups risk destabilising its climate of religious tolerance [pg. 3]”. The following excerpt from the same report presents a different picture of the situation in Cameroon than the one presented by the Tribunal:

    “In Cameroon, the rise of Christian revivalist (born again) and Muslim fundamentalist movements is rapidly changing the religious landscape and paving the way for religious intolerance. [pg. 3]”

    MINISTER’S SUBMISSIONS

  9. The Minister submitted that:

    (a)it was for the Applicant to provide material to the Tribunal to establish her case: Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412 (“Lat”) at [76] per Heery, Conti and Jacobson JJ, and it was for the Applicant (represented before the Tribunal by a registered migration agent) to bring to the attention of the Tribunal any material she wished to rely upon: Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 (“S214/2003”) at [26] per Allsop, Jacobson and Graham JJ; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [16] per Selway J (“SGBB”);

    (b)the country information utilised, and the weight attributed thereto, was a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [13] per Gray, Tamberlin and Lander JJ, and the Tribunal was not obliged to inquire into more recent country information than it had before it: VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291; (2005) 87 ALD 333 (“VTAG”) at [41] per Heerey, Finkelstein and Lander JJ; VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29, and, in any event, the Tribunal did have regard to more recent country information: CB 193 at [101]-[102] and fnn 6 and 7;

    (c)the Applicant seeks to have the Court engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

    CONSIDERATION

  10. The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An error may constitute a jurisdictional error where the Tribunal:

    (a)identifies a wrong issue;

    (b)asks the wrong question;

    (c)ignores relevant material; or

    (d)relies on irrelevant material,

    in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300, as may unreasonableness: as to which see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.

  11. The Applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.

  12. This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the Applicant’s claim for protection: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

  13. The Tribunal, in conducting a review, is not bound by technicalities, legal forms or the rules of evidence: Migration Act, s 420(a), and may get any information that it considers relevant: Migration Act, s 424(1). It is well-established that in referring to and considering country information, the identification of relevant country information and the weight to be attributed to it are matters for the Tribunal: NAHI at [11] and [13] per Gray, Tamberlin and Lander JJ. It is not for the Court to make an assessment of the “truth” of country information: for it to do so would involve it undertaking impermissible merits review: NAHI at [11] per Gray, Tamberlin and Lander JJ.

  14. In VTAG at [41] per Heerey, Finkelstein and Lander JJ the Full Court of the Federal Court held that there was no obligation on the Tribunal to accept more recent information, even if it had been supplied, noting that it may be from a less reliable source, nor was the Tribunal obliged to inquire into more recent country information than was before it. In ACL17 v Minister for Immigration & Anor [2018] FCCA 3191 (“ACL17 – FCCA”) at [42] per Judge Driver this Court observed that:

    I accept from Minister for Immigration v MZYTS, ARG15 v Minister for Immigration and MZYXP v Minister for Immigration, that where the Tribunal has various pieces of country information before it, it may fall into error by not considering the most recent or cogent information. That does not mean, however, that the Tribunal has to go hunting for information it does not have. There is no general duty to inquire and nothing in this case triggered an obligation to inquire.

  15. ACL17’s appeal against the judgment of this Court in ACL17- FCCA was dismissed by the Federal Court: ACL17 v Minister for Home Affairs [2019] FCA 753; (2019) 165 ALD 301 (“ACL17 – FCA”). Special leave to appeal ACL17 – FCA was refused by the High Court: ACL17 v Minister for Home Affairs & Anor [2019] HCASL 318.

  16. The passage from ACL17-FCCA set out at [14] above refers to Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”). In MZYTS the Full Court of the Federal Court, having stated the general principle at [73] per Kenny, Griffiths and Mortimer JJ “that administrative decision-making should be based on the most up-to-date information in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction”, the Full Court of the Federal Court went on at [74] per Kenny, Griffiths and Mortimer JJ to make the following observations about the use of older country information by the Tribunal:

    That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.

  17. In this case it would appear that neither the ‘USDOS Cameroon Religious Freedom 2019 Report’ nor the ‘ICG Cameroon Religious Radicalism 2015 Report’ were referred to, or sought to be put to, the Tribunal by the Applicant, who was represented in the Tribunal proceedings by a registered migration agent: CB 37 and 168. It is well established that it is for the applicant to provide their evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts: Lat at [76] per Heery, Conti and Jacobson JJ; Aporo v Minister for Immigration & Citizenship [2009] FCAFC 123; (2009) 113 ALD 46 at [45] per Spender, Moore and Foster JJ. If the Applicant intended to rely upon the ‘USDOS Cameroon Religious Freedom 2019 Report’ or the ‘ICG Cameroon Religious Radicalism 2015 Report’ then it was for her representative to bring those reports to the attention of the Tribunal: S214/2003 at [26] per Allsop, Jacobson and Graham JJ; SGBB at [16] per Selway J. In Shrestha v Minister for Immigration & Anor [2013] FCCA 710  (“Shrestha”) at [73] per Judge Nicholls, this Court referred to S214/2003 and SGBB when finding that if there was medical evidence in support of a claim made in that case, it ought to have been put before the Tribunal by the applicant in that case. The Court in Shrestha agreed with a submission made by the Minister “that the absence of such evidence before the Tribunal, despite opportunity given to the applicant, means that the Tribunal’s findings were reasonably open to it on what was (and was not put) before it”. The same applies here: on what was put, or not put, before the Tribunal by the Applicant, the conclusions reached by the Tribunal were reasonably open to be made.

  1. The failure by the Applicant to put the country information now referred to, namely the ‘USDOS Cameroon Religious Freedom 2019 Report’ and the ‘ICG Cameroon Religious Radicalism 2015 Report’, before the Tribunal also distinguishes this matter from the finding made in MZYTS at [73] per Kenny, Griffiths and Mortimer JJ referred to in the Applicant’s Submissions at [10], because in MZYTS the Tribunal ignored more recent country information which was actually put before it. SZUAL v Minister for Immigration & Anor [2016] FCCA 34 (“SZUAL”) at [22] per Judge Cameron was also sought to be relied upon by the Applicant but it does not assist the Applicant, the Court there observing that the “Tribunal must have regard to the information before it, including the most recent information, but which information it prefers is a matter for it”. That is exactly what the Tribunal did in this case.

  2. The ‘USDOS Cameroon Religious Freedom 2019 Report’ and the ‘ICG Cameroon Religious Radicalism 2015 Report’ are also not in evidence in proceedings before this Court, in which the Applicant was legally represented, and nor were they sought to be put in evidence, even when that omission was highlighted at hearing by both the Minister’s lawyer and the Court: Transcript at 4-5. There is, therefore, no evidence before the Court of the alleged more recent and relevant country information, and consequently no evidentiary basis for the Court to make any findings in relation thereto.

  3. In relation to the Applicant’s complaints concerning the  use of country information dating from 2009 to 2011 in the Tribunal Decision at CB 192 at [94]-[95], that must be viewed in the context of the claims made by the Applicant. In particular, regard ought to be had to the preceding paragraph in the Tribunal Decision at CB 191-192 at [93], where the Tribunal considered the Applicant’s post-Tribunal hearing submissions which alleged that the applicant lived in “fear of persecution ‘mostly for religious reasons’” suffering domestic violence from her father and husband due to her refusal to convert to Islam. The Applicant’s evidence before the Tribunal was that this abuse began with her forced marriage to a Muslim man in 2009 and continued until late 2014: CB 147. It therefore follows that the subsequent paragraphs of the Tribunal Decision, in dealing with this claim, utilise country information that is relatively contemporaneous with the events alleged. In light of the claims made, and the time that the claims related to, the use of country information dating from 2009 to 2011 is not exceptional, and the decision to use that country information which was before the Tribunal, unlike the country information now referred to which was not before the Tribunal, was a matter for the Tribunal: NAHI at [11] and [13] per Gray, Tamberlin and Lander JJ; Shrestha at [73] per Judge Nicholls; SZUAL at [22] per Judge Cameron; ACL17 – FCCA at [42] per Judge Driver.

  4. The Tribunal did not, however, rely solely on older country information. At CB 193 at [101] the Tribunal considered country information dating from 2018. This more current country information was used to consider the broader question posed by the Tribunal: was there a real chance the Applicant would face persecution if she returned to Cameroon in the reasonably foreseeable future because of her religion: CB 192 at [99]. In the Tribunal Decision at CB 192-193 at [99]-[105] this question was dealt with by the Tribunal, and in the context of this broader, forward-looking question, the Tribunal appropriately utilised more current information to inform its decision-making.

  5. For the reasons set out above, the Court can see no jurisdictional error in the Tribunal Decision. Ground 3 is therefore not made out.

    CONCLUSION AND ORDER

  6. The Court has concluded that ground 3 of the Amended Judicial Review Application has not been made out. It follows that there will be an order dismissing the Amended Judicial Review Application.

  7. The Court will hear the parties as to costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       30 April 2021

Cases Citing This Decision

0