AMO18 v Minister for Home Affairs
[2020] FCA 1403
•29 September 2020
FEDERAL COURT OF AUSTRALIA
AMO18 v Minister for Home Affairs [2020] FCA 1403
Appeal from: AMO18 & Ors v Minister for Home Affairs & Anor [2018] FCCA 3379 File number(s): QUD 911 of 2018 Judgment of: GREENWOOD J Date of judgment: 29 September 2020 Catchwords: MIGRATION – consideration of an appeal on the footing that the primary judge is said to have fallen into error in failing to find that the Administrative Appeals Tribunal fell into jurisdictional error in relation to its assessment of a claim under the Complementary Protection Regime of the Migration Act 1958 (Cth) concerning a fear of a real risk of significant harm on the footing that the appellants would be regarded, respectively, as a divorcee and family members of a divorcee, should the appellants return to the Philippines Legislation: Migration Act 1958 (Cth), ss 5J(2), 5LA, 36(2)(a), 36(2)(aa), 36(2A), 36(2B)(b) Cases cited: CR1026 v Republic of Nauru (2018) 92 ALJR 529
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 74 Date of hearing: 17 May 2019 Counsel for the Appellants: J R Young Solicitor for the Appellants: Stolar Law Counsel for the Respondents: J Byrnes Solicitor for the Respondents: Sparke Helmore ORDERS
QUD 911 of 2018 BETWEEN: AMO18
First Appellant
AMR18
Second Appellant
AMS18
Third Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
GREENWOOD J
DATE OF ORDER:
29 SEPTEMBER 2020
THE COURT ORDERS THAT:
1.The appeal is upheld.
2.The orders of the Federal Circuit Court of Australia made on 21 November 2018 are set aside and in their place orders are made:
(a)for the grant of the constitutional writs setting aside the decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 15 November 2017 to the extent that the Tribunal affirmed the decision of the first respondent’s delegate not to grant the appellants a protection visa on the basis of a claim made under the Complementary Protection Regime of the Migration Act 1958 (Cth) on the footing that the appellants as, respectively, a divorcee and the family members of a divorcee, would suffer a real risk of significant harm should they return to the receiving country of the Philippines, and remitting that matter to the Tribunal to be determined according to law; and
(b)that the first respondent pay the costs of the appellants of and incidental to the application to the Federal Circuit Court of Australia.
3.The first respondent pay the costs of the appellants of and incidental to the appeal to this Court.
4.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
Background
This appeal from orders of the primary judge dismissing the application of the appellants for the grant of the constitutional writs is concerned with two questions for determination.
The first question is concerned with the relationship between s 36(2)(aa) and s 36(2B)(b) of the Migration Act 1958 (Cth) (the “Act”).
Each of the three appellants asserted before the Minister’s delegate and the Administrative Appeals Tribunal (the “Tribunal”) that they are non‑citizens in respect of whom the Minister (and the Tribunal in the exercise of its statutory review function) ought to be satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of each non‑citizen appellant being removed from Australia to the receiving country of the Philippines, there is a real risk that each non‑citizen appellant will suffer significant harm.
In the context of each non‑citizen’s claim thus made under s 36(2)(aa) of the Act, the Tribunal was required to determine whether s 36(2B)(b) of the Act was engaged. That subsection begins with the word “However” and provides that there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country (the Philippines in this case) if the Minister (and the Tribunal in the exercise of its review jurisdiction) is satisfied that the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm.
In considering the question of whether the Tribunal could reach a state of satisfaction (or not) as to whether Australia has protection obligations in respect of each non‑citizen appellant because there were substantial grounds for believing that there is a real risk (as a necessary and foreseeable consequence of each non‑citizen appellant being removed to the Philippines) that each non‑citizen appellant will suffer significant harm, the Tribunal was required to ask itself whether it could be satisfied that each non‑citizen appellant could obtain, from an authority of the Philippines, protection such that there would not be a real risk that each non‑citizen would suffer significant harm.
If satisfied that each non‑citizen appellant could obtain such protection, the Tribunal would be required to conclude that there is not a real risk that the non‑citizen will suffer significant harm, when determining whether Australia has protection obligations in respect of each appellant for the purposes of s 36(2)(aa) of the Act.
The first question for determination in this appeal is whether the Tribunal asked itself the right question for the purposes of s 36(2B) in the context of its relationship with s 36(2)(aa) and if so, whether it answered the question it had asked itself.
As to the second question, although it will be necessary to identify the contextual facts found by the Tribunal concerning the claims of the appellants, it is sufficient for present purposes to note that the first appellant, AMO18, is “Ms A” who was formerly married to “Mr A”. For the sake of clarity, I will refer to Ms A as “Mrs A”. Mrs A and Mr A are the parents of two daughters relevant to these proceedings, “Ms CHS” and “Ms CLS”. They are the second and third appellants AMR18 and AMS18. At the date of the Tribunal’s decision, Ms CHS was 19 years of age and Ms CLS was 13 years and eight months of age. The appellants are nationals of the Philippines.
It seems that Mr A is also a national of the Philippines although it was not necessary for the Tribunal to make a finding about that matter. Mr A and Mrs A were married on 1 May 1995 in the Philippines. They had three children in the Philippines, the eldest of which has experienced particular developmental issues and the Tribunal notes that she resides in the Philippines with Mrs A’s parents and is said to be dependent upon financial support from Mrs A’s paid employment in Australia. Mr A arrived in Australia in 2006 pursuant to a Subclass 457 (Business) visa under the Act. Mrs A, Ms CHS and Ms CLS also arrived in Australia in 2006 nominated as dependents for the purposes of Mr A’s visa.
Mrs A made claims before the delegate and the Tribunal that since arriving in Australia, Mr A had restricted Mrs A’s communication with others outside the family, monitored her phone calls, became aggressive towards her and the daughters, became violent, sent threatening texts to her, took Ms CLS in September 2009 without Mrs A’s knowledge from a friend’s home where Mrs A and the daughters were seeking shelter ultimately requiring police intervention to return Ms CLS to her mother, and engaged in a range of conduct causing Mrs A to fear for her safety and the safety of her daughters, including a fear that her former husband had the influence and capacity to hire someone to kill her in the Philippines should she return and that on 13 January 2015, Mr A had visited Mrs A’s aunt’s house in the Philippines and made threats against Mrs A.
Mrs A separated from Mr A in 2008. Mrs A remained in Australia with her two daughters working to support herself and her daughters. Mr A returned to the Philippines in October 2009. Mrs A was granted a divorce in Australia from her husband in July 2011.
On 26 March 2010, Mrs A applied for a Protection visa under s 36(2)(a) of the Act on her own behalf nominating her two daughters as dependents on that application. That application was refused by the Minister’s delegate on 22 June 2010. The Refugee Review Tribunal affirmed the delegate’s decision on 22 October 2010. However, as a result of the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, Allsop CJ, Buchanan and Griffiths JJ, the appellants made a further application on 13 March 2014 on the following basis.
Mrs A then made the application earlier described in reliance upon s 36(2)(aa) of the Act, that is, Mrs A claimed that Australia has complementary protection obligations owed to her on the ground that she faced a “real chance” of “significant harm” in the reasonably foreseeable future from Mr A should she return to the Philippines, for many of the reasons described at [10] of these reasons. Subject to the Tribunal’s analysis of the operation of s 36(2B), the Tribunal accepted that claim at [95] of the Tribunal’s reasons.
Mrs A also claimed to be at risk of significant harm in the form of degrading treatment arising out of her status as a divorcee; the attitude to divorce in the Philippines, which is predominantly a Roman Catholic community where divorce is not recognised as legal; and the circumstance that her Australian divorce would not be recognised in the Philippines.
Ms CHS and Ms CLS made applications on three grounds.
First, they claimed that the Minister (and the Tribunal) ought to be satisfied that Australia has protection obligations to them as persons who hold a well‑founded fear of persecution (as that term is understood in s 5J of the Act) if they return to the Philippines, by reason of their “membership of a particular social group” described as children of a divorcee and family members of a divorcee: s 36(2)(a).
Second, they claimed that protection obligations arose under s 36(2)(aa) on the footing that they were at risk of significant harm in the form of degrading treatment by reason, put simply, of their membership of the nominated particular social group.
Third, they claimed that protection obligations arose under s 36(2)(aa) on the footing that they feared a “real chance” of “significant harm” in the reasonably foreseeable future from Mr A, their father, should they return to the Philippines. Subject to the Tribunal’s analysis of the operation of s 36(2B), the Tribunal accepted that claim at [95] of the Tribunal’s reasons.
As to the question of whether the Tribunal could reach a state of satisfaction about the postulated particular social group, the Tribunal at [110] observed that Mrs A’s Australian divorce would not be recognised in the Philippines and “as such, the Tribunal does not accept that the applicant will be considered a divorcee in the Philippines or that [Ms CHS and Ms CLS] will be considered ‘children of a divorcee’ as put forward by their representative”. The Tribunal at [110] then observed that it accepted that Mrs A is likely to be considered a single parent and Ms CHS and Ms CLS children of a single parent. The Tribunal then assessed the claims relating to the question of whether any of the appellants fell within the postulated designation on the footing that they ought to be regarded, respectively, as a single parent and the children of a single parent.
The second question then for consideration in this appeal is whether the Tribunal fell into jurisdictional error in its consideration of the postulated social group and whether the finding caused the Tribunal to exceed its jurisdiction on the contended basis that the finding “lacks an evident and intelligible justification” and gives rise to a conclusion of “unreasonableness” seeking to invoke the observations of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]. A further question arises as to the reach of that notion in relation to findings of fact going to a state of satisfaction as compared with notions of unreasonableness in connection with the exercise of the discretion.
Aspects of the reasons and findings of the Tribunal
Before examining the reasoning of the primary judge which is said to reflect error, it is necessary to examine the relevant findings of the Tribunal.
At [89], the Tribunal observes that in its assessment of the claims, it is giving consideration to the question of whether there is a real risk that the appellants would suffer significant harm should they be returned to the receiving country of the Philippines and also considering the question of whether the claim made by the two daughters gives rise to a well‑founded fear of persecution for a Convention reason. It is not necessary to examine the factual basis for the claims made by the appellants of significant harm as the Tribunal has made findings about those matters.
At [91], the Tribunal observes that on the basis of the submissions of the appellants, it accepts that they were subject to physical and emotional violence for the duration of the marriage of Mr A and Mrs A until Mr A departed Australia in 2009. The Tribunal accepts that Mr A had taken Ms CLS in September 2009 requiring police intervention to return the youngest daughter to her mother.
At [92], the Tribunal observes that it finds that the reason that Mr A may seek to harm the appellants is “essentially and significantly a personal reason and not for a Convention reason such as their religion, political opinion or membership of a particular social group”.
At [93], the Tribunal analyses some factual matters about the capacity of Mr A either by himself or by others (about which Mrs A was concerned) to cause harm to the appellants. Those matters at [93] led the Tribunal to conclude that it had “some doubts” about the likelihood of either of the two appellant daughters facing a “real chance of serious harm” or of the appellants facing a “real risk of significant harm” from Mr A, if the appellants were to return to the Philippines in the reasonably foreseeable future. Notwithstanding some doubt, the Tribunal made this observation at [95]:
However, given the applicants’ evidence is that [Mr A] continues to hold Philippines citizenship and may now run a business in the Philippines, the Tribunal accepts that he is likely to travel to the Philippines (albeit irregularly). On this basis and for the purposes of this review, the Tribunal is prepared to accept that the applicants face a real risk of significant harm in the reasonably foreseeable future from [Mr A].
[emphasis added]
Having made that observation, the Tribunal then formulated the issue which was then before it in this way at [96]:
The issue before the Tribunal is whether the applicants could obtain state protection such that there would not be a real risk that they will suffer significant harm. Considering the country information outlined above, the Tribunal is satisfied that the Philippines authorities have established a range of measures and are reasonably effective in addressing domestic violence. The Tribunal also notes that although there is corruption within the system, there is nothing in the information provided by the applicants to indicate that the state is unable or unwilling to protect them in their particular circumstances.
At this point, it is convenient to note that the Tribunal is seeking to address a question arising under s 36(2B) although there is no particular mention of the section or its text. Although the elements of s 36(2)(a) and s 36(2)(aa) are well‑known, those subsections of s 36 together with s 36(2A) and s 36(2B) are in these terms:
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) 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; or
…
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
[emphasis added in italics but not bold]
Before identifying the particular grounds of appeal as framed by the notice of appeal, it is convenient to identify some aspects of the relationship between s 36(2)(aa), s 36(2A) and s 36(2B) of the Act. These principles or propositions largely derive from the observations of the joint judgment of the members of the Full Court in Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 (“MZYYL”), Lander, Jessup and Gordon JJ. The principles are these:
(1)These provisions, known as the Complementary Protection Regime, provide criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to the non‑citizen under the Refugees Convention to the extent to which that Convention is given statutory force by the provisions of the Act.
(2)The Complementary Protection Regime is a codified regime in the sense that the relevant criteria and obligations are defined within the regime and the regime contains its own definitions: MZYYL at [18]; CR1026 v Republic of Nauru (2018) 92 ALJR 529 (“CR1026”), Kiefel CJ, Gageler and Nettle JJ at [18].
(3)Section 36(2)(aa) and s 36(2B) in substance stipulate that an applicant for complementary protection must demonstrate that he or she cannot avail himself or herself of the protection of the receiving country: CR1026 at [18]. In the case of s 36(2B)(b), an applicant for complementary protection must demonstrate that he or she could not obtain, from an authority of the country (the receiving country), protection such that there would not be a real risk that he or she will suffer significant harm. Section 36(2B)(b) is the obverse of s 36(2)(aa): MZYYL at [33].
(4)If any of the circumstances mentioned in s 36(2B), and relevantly for this case, the circumstances in s 36(2B)(b) are found to exist, the Minister must conclude that the non‑citizen would not suffer significant harm for the purposes of s 36(2)(aa).
(5)The reference in s 36(2)(aa) of the Act to a “real risk” that the non‑citizen will suffer significant harm involves asking the question of whether there is a “real chance” of the non‑citizen suffering significant harm if removed from Australia to the receiving country.
(6)The inquiry required by the circumstances mentioned in s 36(2B) is not “at large”: MZYYL at [33]. The statutory text requires an inquiry into the particular circumstances that appertain to the non‑citizen whose application for a visa is under consideration: MZYYL at [33].
(7)The statutory text of s 36(2B)(b) is different to the text governing the “state protection test” adopted by the Act in relation to the Refugees Convention: MZYYL at [34] and the authorities mentioned in that paragraph.
(8)The text of s 36(2B)(b) does not either by its terms or in its operation (MZYYL at [35]), require either the conclusion that it is inevitable that the non‑citizen will suffer significant harm or the conclusion that it is certain that he or she will not suffer such harm. The terms of the section require the Minister to be satisfied that given the protection available to the non‑citizen in the receiving country, there would not be a real risk that he or she will suffer significant harm: MZYYL at [35].
(9)The proposition that the prescribed standard of protection in s 36(2B)(b) is satisfied if the State authority in question operates an effective legal system for the detection, prosecution and punishment of acts constituting serious harm and that the non‑citizen has access to such protection, is to be rejected: MZYYL at [36]. The proposition is contrary to the express words of the section and construing the provision consistent with such a proposition would cause the Court to ignore or read out of the statutory text of s 36(2B)(b) the phrase “real risk” and the reference to the “non‑citizen”: MZYYL at [36].
(10)In terms of the approach to the construction of s 36(2)(aa), s 36(2A) and s 36(2B), the provisions must be read as an integrated statutory “whole”. The inquiry provided for by the statutory text of s 36(2)(aa) necessarily involves consideration of the matters referred to in s 36(2B). The Minister (nor the Tribunal) does not undertake the inquiry in s 36(2)(aa) and then move on to consider the s 36(2B) factors as if, for example, s 36(2B)(b) is to be regarded as a “carve‑out” to be considered after the inquiry provided for in s 36(2)(aa) has been undertaken.
(11)Section 36(2B)(b) poses the question of whether, in obtaining protection from the receiving country, the protection is such that there would not be a real risk (real chance) that the non‑citizen would suffer significant harm if returned to the receiving country. The section proceeds from an assumption that there will be circumstances where the protection offered to the non‑citizen is not sufficient to “remove the fact” that there is a real risk that the non‑citizen will suffer significant harm: MZYYL at [39].
(12)Section 36(2)(aa) requires an assessment of whether the level of protection offered by the receiving country to the returning non‑citizen “reduces the risk of significant harm” to the non‑citizen “to something less than a real one”: MZYYL at [40].
As to the grounds of appeal, the grounds are framed in the following way (inserting direct references to the parties).
Grounds of appeal
1.His Honour erred by failing to find that the Tribunal’s finding at [110] that Mrs A would not be considered a divorced person and Ms CHS and Ms CLS [Mrs A’s children] would not be considered as children of a divorced person because divorce is not legal in the Philippines was unreasonable or alternatively was a finding without [an] evident, intelligible justification.
2.Further, or in the alternative to Ground 1, his Honour erred by failing to provide reasons for his conclusion at [57] of the judgment was not a finding that was made without evident or intelligible justification.
3.His Honour erred by failing to consider at [67] & [68] of the judgment the decision in [MZYYL] which held that pursuant to s 36(2B)(b) of the Act, there was a requirement of the Minister or Tribunal to assess the level of protection offered by the receiving country and whether it was such as to reduce the risk of significant harm to the Appellants to something less than a real risk.
4.Further, or in the alternative to Ground 3, his Honour “erred” by failing to consider binding authority and/or relevant facts in relation to the matters in the proceedings pursuant to s 36(2B)(b) of the Act.
5.His Honour erred by failing to address or to appreciate the case advanced by the Appellants in particular given the finding of the Tribunal at [95] of the Tribunal decision.
Further findings of the Tribunal
Before examining the grounds of appeal, it is necessary to identify further findings of the Tribunal.
At [91], the Tribunal accepts that the applicants were subject to physical and emotional violence for the duration of the marriage until their husband and father, respectively, departed Australia in October 2009. The Tribunal accepts that Mr A took one of his daughters in September 2009 which required police intervention to return her to her mother. At [92], the Tribunal finds that the reason Mr A may seek to harm each of the applicants is “essentially and significantly” a personal reason and not a Convention reason concerning religion, political opinion or membership of a particular social group. At [95], as earlier mentioned, the Tribunal accepts that the applicants face a real risk of significant harm in the reasonably foreseeable future from Mr A. In that sense, the Tribunal accepts that s 36(2)(aa) and s 36(2B) are engaged although, the provisions of s 36(2)(aa), s 36(2A) and s 36(2B), considered as a whole, raised the question (at [96]) of whether the applicants “could obtain state protection such that there would not be a real risk that they will suffer significant harm”. The appellants contend that at [96] the Tribunal asked itself the right question but failed to answer that question by, in effect, answering a different question not being the question required by the statutory inquiry required by s 36(2B)(b).
At [96], the Tribunal said this:
Considering the country information outlined above, the Tribunal is satisfied that the Philippines authorities have established a range of measures and are reasonably effective in addressing domestic violence. The Tribunal also notes that although there is corruption within the system, there is nothing in the information provided by the applicants to indicate that the State is unable or unwilling to protect them in their particular circumstances.
[emphasis added]
At [97], the Tribunal then said this:
Accordingly, the Tribunal does not accept that the authorities would be unable or unwilling to protect the applicants in their circumstances. There is no evidence to show that the authorities have refused to do so. The applicants have not tested this and have not lodged a complaint to the police regarding domestic violence prior to their arrival in Australia. The applicants provided no reason why they could not take advantage of this protection or the judicial system, only that Mrs A thought that the country information was “not the reality”.
[emphasis added]
At [98], the Tribunal made reference to country information quoted earlier in the reasons and noted that there are organisations in the Philippines that provide a range of social welfare services for women and children experiencing domestic violence. The Tribunal noted and identified a range of government agencies engaged in the role of addressing gender‑based violence. Those agencies noted by the Tribunal were the National Statistics Office, the Department of Social Welfare, the Department of Health, the Philippine National Police, the Department of Justice, the Civil Service Commission and the Commission on Higher Education (noting a Report dated 31 August 2014). At [98], the Tribunal also noted that there are legal protections for victims of harm which indicate that any woman experiencing any form of violence from her husband or live‑in partner (or otherwise), may obtain a protection order to prevent such persons from inflicting further acts of violence on her and/or her children. At [99], the Tribunal observes that all temporary protection orders and permanent protection orders issued under the relevant instruments are enforceable anywhere in the Philippines.
At [101], the Tribunal observes that it has considered the claims of the applicants that state protection only provides temporary help as resources in the Philippines are limited and the Philippines is a developing country experiencing a great deal of crime.
At [102], the Tribunal observes that in relation to the overall effectiveness of the authorities in the Philippines, country information shows that the State protection system in the Philippines consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. The Tribunal observes that the police and indeed the government of the Philippines have been making a concerted effort since at least 2008 to protect the rights of women and children against domestic violence.
At [103], the Tribunal observes that country information suggests that the government has taken “this issue” seriously and has committed significant resources in doing so.
The finding at [95] that the Tribunal accepts that the appellants face a real risk of significant harm in the reasonably foreseeable future from Mr A (should they be returned to the receiving country), which gave rise to the question at [96] (which the applicants accept as the correct question to ask) of whether the appellants could obtain State protection such that there would not be a real risk that they would suffer significant harm, resulted in the conclusion at [104] as the end point of the analysis of the various matters discussed at [96] to [103]. The appellants contend that the finding at [104] is “critical” and they contend that although the observations at [104] purport to provide an answer to the question posed at [96], it answers a different question which is not the inquiry engaged by s 36(2B)(b) in conjunction with s 36(2)(aa).
Paragraph [104] is in these terms:
Overall, on the available evidence, the Tribunal is not satisfied that the police have failed to act or would fail to act if requested to offer the applicants protection from [Mr A]. On the basis of the available evidence, the Tribunal is satisfied that effective state protection is available to the applicants. Therefore, the Tribunal finds that [the two daughters] do not have a well‑founded fear of persecution due to the state failing to protect them from their father and that none of the applicants face a real risk of significant harm from [Mr A] because effective protection measures are available to them.
The first element of [104] is the observation that, overall, on the available evidence, the Tribunal is not satisfied that the police would fail to act if requested to offer the appellants protection from Mr A. The second element of [104] is that, on the basis of the available evidence, the Tribunal is satisfied that “effective state protection” is available to the appellants. The third element of [104] is the focus of attention by the appellants because it is said to be a conclusion drawn from the first two elements as it is introduced by the word “Therefore”. The third element is the Tribunal’s finding in two parts. First, that the two daughters, Ms CHS and Ms CLS, do not have a well‑founded fear of persecution (the language of a protection obligation arising under s 36(2)(a) having regard to related provisions of the Act, rather than the language of s 36(2)(aa) and s 36(2B)(b)), due to the State failing to protect them from their father, and second, that none of the appellants (Mrs A and the two daughters) face a real risk of significant harm (the language of s 36(2)(aa)) because “effective protection measures” are available to them. The reference to “effective protection measures” suggests that the Tribunal had in mind the statutory phrase “effective protection measures” which is made relevant to the notion of a well‑founded fear of persecution, by s 5J(2) of the Act. That subsection provides that a person does not have a well‑founded fear of persecution (a matter relevant to a claim made in reliance on s 36(2)(a)) if “effective protection measures” are available to the person in the receiving country. Sections 5LA(1) and (2) provide that effective protection measures are available to the relevant person in the receiving country if the factors set out in those two subsections are engaged.
The questions arising under s 36(2)(a), s 5J(2) and s 5LA are not the statutory questions arising under s 36(2)(aa) and s 36(2B)(b) of the Act, although some aspects of the inquiry under s 5J(2) and s 5LA may overlap with some aspects of the inquiry under s 36(2)(aa) and s 36(2B)(b).
The ultimate proposition of the appellants is that in addressing the claim of all appellants to be owed complementary protection obligations on the footing that there is a real risk of the appellants suffering significant harm should they be returned to the receiving country, the Tribunal engaged with the notion of “effective protection measures” and the notion of whether the Philippines has a reasonably effective police force and an impartial judicial system, and in so doing, fell into jurisdictional error in two respects. First, the Tribunal had in mind when answering the question posed at [96], required by s 36(2)(aa) and s 36(2B)(b), a statutory inquiry required by s 36(2)(a), s 5J(2) and s 5LA. Second, the Tribunal failed to undertake the inquiry required by s 36(2)(aa) and s 36(2B)(b) in the manner required having regard to the observations of the Court in MZYYL.
As to these matters, the appellants contend that the primary judge erred by failing to apply, having regard to the Tribunal’s finding at [95], the principles governing the scope of the inquiry to be undertaken by the Tribunal required by MZYYL when examining and determining a claim for complementary protection under s 36(2)(aa) having regard to s 36(2B)(b).
As to these matters, the primary judge at [67] accepted that the scope of the inquiry required by s 36(2)(a), s 5J(2) and s 5LA is different to the scope of the inquiry required by s 36(2)(aa) and s 36(2B)(b) of the Act. In reaching that view, it is true that the primary judge did not refer to MZYYL or any aspect of the particular principles derived from that authority: see [28] of these reasons. Nevertheless, the primary judge did accept the fundamental proposition that the “tests” (inquiry) under the relevant provisions are different. Moreover, the primary judge accepted that so far as s 36(2)(aa) and s 36(2B)(b) are concerned, the inquiry required by those provisions is focused upon whether the “particular applicant” could access protection. At [68], the primary judge observed that although the two tests are separate, they are to a large degree informed by findings and conclusions of the Tribunal “reached about the same matters”. The primary judge at [68] observed that the Tribunal’s reasons indicate a “detailed consideration of the relevant requirements of each of the tests and conclusions about them” with the result that the Tribunal did not fall into jurisdictional error in the way contended for by the appellants: primary judge at [69].
How did the Tribunal approach its task?
At [89], the Tribunal identifies that the issues raised by the review are, first, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the appellants being removed from Australia to the receiving country of the Philippines, there is a real risk that they will suffer significant harm, and second, whether the two daughters, Ms CHS and Ms CLS, have a well‑founded fear of being persecuted “as defined in Article 1 of the Convention” (the Tribunal having identified the relevant statutory framework in the early part of its reasons). Throughout the early part of the reasons, the Tribunal comprehensively identifies the factual claims made by the applicants. The identification of the factual basis for the claims is comprehensively identified and it is not necessary to set out the details of those matters in these reasons. From [89], the Tribunal begins its “Assessment” of the claims and the factual foundation for the claims. As to the content of the submissions on the facts made by the applicants, it can be seen that the Tribunal begins to summarise at [91] the matters it accepts as put to it by or on behalf of the applicants. Those factual matters can be seen at [92], [93] and [94]. Aspects of the factual matters specific to the applicants’ claims can be seen in [95] ultimately leading to the observation at [95] introduced by the words “on this basis and for the purposes of this review”, the Tribunal accepts that the applicants face a real risk of significant harm in the reasonably foreseeable future from Mr A. Clearly enough, that observation is directed to the claim based upon s 36(2)(aa) having regard to s 36(2B)(b) within the Complementary Protection Regime. The Tribunal at [92] observes, as to the claim based on s 36(2)(a) and related provisions of the Act made by the two daughters, that the apprehended harm to which they might be exposed (from Mr A) was not based upon a reason related to any aspect of their religion, political opinion or membership of a particular social group.
As already mentioned, the Tribunal at [96], framed the question or inquiry arising under s 36(2)(aa) and s 36(2B)(b) of the Act. Having framed that question (in a way not challenged by the appellants), the Tribunal takes into account country information and observes that it is satisfied that the authorities of the Philippines have established a range of measures that are reasonably effective in addressing “domestic violence”, which is the phrase the Tribunal attributes to the character of the harm the appellants fear. At [96], the Tribunal notes that although there is corruption within “the system” in the Philippines, there is nothing “in the information provided by the applicants” to indicate that the State is unable or unwilling to protect them “in their particular circumstances”. It seems clear enough that having immediately framed the scope of the inquiry at [96], the Tribunal is expressly taking into account at [96] the information put to it by the appellants, which must be understood as the evidence supporting the claims and all information put before the Tribunal by the appellants, and assessing that material in the context of the “particular circumstances” of the appellants when reaching conclusions about the range of measures established by authorities within the Philippines directed to addressing domestic violence and the ability and willingness of the State to protect the appellants in their particular circumstances.
In other words, the assessment of whether the appellants have been able to demonstrate to the satisfaction of the Tribunal that they could not obtain, from an authority of the Philippines, protection such that there would not be a real risk that they will suffer significant harm, has been undertaken by the Tribunal having regard to the nature of the protection measures available to them in the Philippines in the context of their particular claims and circumstances.
It would be unreasonable to read [96] and [97] and then [98] to [103] in any other way. In construing those paragraphs, it is also important to have regard to the Tribunal’s analysis of factual matters at [91] to [95] and the explanation of the Tribunal’s understanding of the factual basis for the claims of the appellants set out throughout the early part of the Tribunal’s reasons.
It is true that at [104], the Tribunal has sought to “wrap up” or summarise its essential conclusions and in doing so, the Tribunal has drawn into its conclusions about the claims of the appellants based on the Complementary Protection Regime a reference to a notion of the appellants not facing a real risk of significant harm from Mr A because effective protection measures are available to them. The correct way to read or construe the Tribunal’s observations at [104] in the context of the reasons read fairly as a whole or “overall” is that the Tribunal is concluding at the outset of [104] that “overall”, on the “basis of the available evidence” the Tribunal is not satisfied that if, in the face of a real risk of significant harm from Mr A, the appellants requested the Philippine police to provide protection, the Philippine police would fail to act, and that “on the basis of the available evidence”, State protection is available to the appellants and, in their circumstances, such protection is effective. The reference to the next set of observations in [104] commencing with the word “Therefore”, is a summary of the conclusion the Tribunal has reached in relation to the claims of the two daughters based on s 36(2)(a) of the Act to the effect that the Tribunal is not satisfied that those appellants have a Convention claim (as adopted by the Act) based on any assertion of a well‑founded fear of persecution (where the persecution is reflected in harm from Mr A) because, apart from the considerations at [92] of the Tribunal’s reasons, there is no basis for concluding that the State would not provide protection. The Tribunal seems to have had in mind when referring to the availability of State protection in the context of the claim based on a well‑founded fear of persecution, the role of State protection against persecution as contemplated by s 5LA(1), as an element of effective protection measures engaging s 5J(2).
The last part of [104] that recites that none of the appellants face a real risk of significant harm from Mr A “because effective protection measures are available to them”, is not a conclusion, fairly read having regard to the reasons as a whole, about effective protection measures in the sense contemplated by s 36(2)(a), s 5J(2) and s 5LA, but rather a statement that having regard to the information put to the Tribunal by the appellants, there is nothing to suggest to the Tribunal that the State is unable or unwilling to protect the appellants in their particular circumstances, that is, the particular circumstances the subject of the quite lengthy discussion in the Tribunal’s reasons. That conclusion of the Tribunal takes into account the relationship between the elements of State protection discussed in the reasons, on the one hand and the nature of the claims of the appellants and the circumstances of the appellants in making those claims, on the other hand.
Accordingly, having regard to the reasons of the Tribunal read as a whole, the Tribunal has not fallen into jurisdictional error in the way contended for by the appellants.
Apart from those matters, the appellants contend that the primary judge fell into error by failing to find that the Tribunal’s finding at [110] that Mrs A would not be considered a divorced person and that the two children of the marriage, Ms CHS and Ms CLS, would not be considered as children of a divorced person because divorce is not legal in the Philippines, was unreasonable as a conclusion which lacks “an evident and intelligible justification” in the sense contemplated by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (“Li”), although no question of the exercise of a statutory discretion by the Tribunal arises in these proceedings. It should also be noted that the legal standard of unreasonableness should not be considered as limited to what is, in effect, an “irrational, if not bizarre decision”: Li, Hayne, Kiefel and Bell JJ at [68].
At [110], the Tribunal notes the claim of Mrs A to “fear harm, discrimination and shame” as a single mother in the Philippines and “because of her status as a divorced woman”. The background facts noted by the Tribunal concerning Mrs A’s separation and divorce from Mr A are set out in summary at [8] to [11] of these reasons. At [30] of the Tribunal’s reasons, the Tribunal notes that the representatives of Ms CHS claim that she would be at “personal risk” in the receiving country due to her status as a child of a divorcee in the Philippines. At [32], the same claim in substance is made on behalf of the younger daughter, Ms CLS, that is, a fear of personal risk due to her status as a child of a divorcee in the Philippines.
Mrs A was granted a divorce in Australia from her husband, Mr A, in July 2011.
At [110], the Tribunal “accepts” that divorce is “not legal in the Philippines”. The Tribunal observes at [110] that, “on this basis”, Mrs A’s Australian divorce will not be recognised in the Philippines and, “as such”, “the Tribunal does not accept that [Mrs A] will be considered a divorcee in the Philippines or that [Ms CHS] or [Ms CLS] will be considered children of a divorcee as put forward by their representative”.
The Tribunal accepts at [110] that Mrs A is likely to be considered a single parent and the two daughters are likely to be considered children of a single parent.
It seems clear enough that the Tribunal understood that the claims made by each appellant on this ground were that they were exposed to a risk of harm by reason of their status, respectively, as a divorcee and children of a divorcee. The Tribunal at [110] did not accept, however, that Mrs A would be considered a divorcee in the Philippines or that the daughters would be considered as the children of a divorcee.
That conclusion or finding is challenged on the footing that rationally and reasonably it cannot rest on the premise from which it is said to derive. More particularly, the appellants contend that the conclusion is “absurd”.
How did the Tribunal reason to its conclusion?
The Tribunal commenced its analysis of the claims of the appellants on this ground by first accepting that divorce is not legal in the Philippines. For the Tribunal, it followed, second, that Mrs A’s foreign order for the dissolution of her marriage to Mr A (which took place in the Philippines in 1995), obtained in Australia in July 2011 (the divorce) would not be “recognised” in the Philippines. That may or may not be true but it is not a conclusion that lacks an evident and intelligible justification. The next step in the reasoning at [110] is that, “as such” (that is, following from the first two propositions), the Tribunal did not accept that Mrs A would be “considered a divorcee” in the receiving country should she return to the Philippines. Rather, the Tribunal considered that she would be “likely to be considered” a single parent. Again, that may or may not be true but the question is whether, as a conclusion, it lacks an evident and intelligible justification or, put another way, whether the conclusion is unsupported by the rule of reason (illogical) to the extent that it is said to flow from the circumstance that Mrs A’s Australian divorce would not be recognised in the Philippines due to the illegality of divorce in the Philippines.
Mrs A is, in fact, divorced from Mr A (although, as a matter of law, the Australian Dissolution Order may not be recognised in the Philippines and the institution of divorce itself may not be recognised in the Philippines as a matter of law). On returning to the Philippines, Mrs A would be returning with two daughters and, as a matter of fact, without the husband to whom she was married in the Philippines in 1995. In that sense, she would be a woman caring for children alone on her return to the Philippines. She might or might not be considered by those in her community in the Philippines as a single parent and her daughters might or might not be considered the children of a single parent.
This is entirely a matter of speculation.
Presumably, those with whom Mrs A would interact in the Philippines and those with whom her daughters would interact in the Philippines, would encounter circumstances where the question of whether Mrs A has or had a husband (the father of the girls) would arise. There might be many such engagements at the community, pastoral, religious, local or government level where the fact of the steps taken to obtain a divorce in Australia in 2011 of the 1995 Philippines marriage might need to be revealed as a matter of truth and honesty in the dealings of the appellants even though the legal status of the order obtained in Australia might not be recognised and nor might the institution of divorce be recognised as a matter of law within the Philippines.
At [111], the Tribunal considered a Report of the Department of Foreign Affairs and Trade (“DFAT”) dated 20 November 2002 concerning the influence of conservative Catholicism in the Philippines and its relationship with the social stigma arising against single parents. The Tribunal notes the high rate of births (37%) of the 1.7 million babies born in the Philippines in 2008 to “unmarried mothers”. At [116], the Tribunal accepts that Mrs A, as a “single mother” may face a level of discrimination should she return to the Philippines and the Tribunal accepts that there is a disproportionate risk of harm to women and children generally in the Philippines. The analysis of various country reports and other matters at [111] to [119] of the Tribunal’s reasons proceeds on the footing that Mrs A would be likely to be regarded as a single parent and, presumably, having regard to the focus of the Tribunal’s discussion about “unmarried mothers”, the Tribunal considered that Mrs A would be regarded as one of the many single parent unmarried mothers of children, rather than a “divorcee”, the subject of the claim.
It may be that upon returning to the Philippines as a woman alone (but with two daughters), Mrs A might be considered to be, or be likely to be, considered a single parent having regard to whatever factual foundation might support such a conclusion. However, if the foundation for the conclusion that Mrs A would not be considered a divorcee is that divorce in the Philippines is not legal and “on this basis” ([110]) Mrs A’s Australian divorce will not be recognised in the Philippines, and “as such” ([110]), Mrs A will not be “considered a divorcee” in the Philippines but rather (and, I infer, merely) a single parent, I am not satisfied that the conclusion arises out of the propositions said to support it.
If the conclusion were to be supported by country information or other factual material before the Tribunal suggesting that divorced women returning from foreign jurisdictions where an order for divorce has been made, to the Philippines with children, are generally regarded or characterised as single parents and not divorcees (thus avoiding the contended risk of harm or shame or discrimination facing divorced women), the claim based upon being exposed to a real risk of significant harm as a “divorcee”, or “family members of a divorcee”, might properly be rejected as having no foundation to support it.
However, the conclusion at [110] rises no higher than a hypothesis that because divorce is not legal in the Philippines and the Australian divorce will not be recognised in the Philippines, Mrs A will not be considered to be a divorcee upon returning to the Philippines.
The Tribunal, in analysing and evaluating the claims of the appellants and in determining whether it can reach a state of satisfaction about those claims, needs to consider whether it can be satisfied that any of the evidence before it or country information relevant to the question in issue supports the proposition that Mrs A, upon returning to the Philippines, would be likely to be regarded as a divorcee or not and whether, on the evidence (or relevant country information) the Tribunal can be satisfied that the daughters of Mrs A would be likely to be considered family members of a divorcee. If there is no evidence on the question in issue to support such a claim or the country information is against it, the claims made by the appellants on the footing that they would be exposed to a real risk of significant harm as, respectively, a divorcee or family members of a divorcee, might be rejected. If there is a basis on which the Tribunal can be satisfied that material relevant to the question in issue suggests that the appellants would be regarded respectively as a divorcee and family members of a divorcee, the Tribunal would then need to consider whether the appellants, being so characterised, face a real risk of significant harm should they return to the Philippines.
Those questions described in [68] of these reasons have not been analysed by the Tribunal because it disposed of the claims of the appellants on the footing that they would not be regarded, respectively, as a divorcee and the family members of a divorcee on the basis of the few sentences contained in [110] which rejected the claim that Mrs A and the daughters would be regarded in the Philippines, respectively, as a divorcee and the family members of a divorcee.
The conclusion reached in [110] in those few short sentences is not supported by the premise upon which the conclusion is said to rest and, in that sense, the dismissal of the claims on that footing is unreasonable in the sense that it offends the rule of reason and is thus illogical or, put another way, the conclusion is unreasonable within the limits of the way in which the conclusion was reached.
Accordingly, in my respectful opinion, the primary judge fell into error at [53] of the primary judge’s reasons in holding otherwise.
I am satisfied that the Tribunal fell into jurisdictional error in addressing this element of the claims made by the appellants.
Accordingly, the orders of the primary judge dismissing the amended application for review of the appellants filed on 27 September 2018 must be set aside together with the order made by the primary judge as to costs and, in place of those orders, the matter of the claim by the appellants based upon a claim for complementary protection on the footing that the appellants would suffer a real risk of significant harm on the footing, respectively, of being a divorcee and the family members of a divorcee, is to be remitted to the Tribunal for determination according to law. Consequential costs orders will also be made.
I certify that the preceding seventy‑four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 29 September 2020
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