AOC18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 591

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AOC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 591

File number:

MLG 307 of 2018

Judgment of:

JUDGE CHAMPION

Date of judgment:

14 July 2023

Catchwords:

MIGRATION LAW – Application for a protection visa – Alleged legal unreasonableness in the Tribunal’s failure to exercise its statutory discretion to require the Secretary to arrange for the making of an investigation as to the genuineness of divorce certificates emanating from an Israeli ecclesiastical court or the state of Israel – Alleged illogical or unreasonable reasoning as to the Tribunal’s rejection of the Applicant’s evidence as to  her marital status being relevant to her claims of family violence – Alleged failure to consider an integer of the claim as to the Applicant not being able to avail herself of the protection of Israeli authorities – Application dismissed

Legislation:

Migration Act 1958 (Cth) ss. 5AAA, 5J, 427

Cases cited:

AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89

BDS17 v Minister for Immigration and Border Protection (2018) 76 AAR 246; [2018] FCA 1683

Hossain v  Minister for Immigration and Border Protection (2018) 264 CLR 123, [2018] HCA 34

Islam v Secretary of State for The Home Department; Regina v Immigration Appeal Tribunal and Another, ex parte Shah (1999) 2 AC 629

Minister for Immigration and Citizenship v Li 249 CLR 33 ; [2013] FCA 18

Minister for Immigration and Citizenship v SZIAI (2009) 83 AJLR 1123; [2009] HCA 39

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FOE17 (2020) 276 FCR 19; [2020] FCAFC 73

Singh v Minister for Immigration and Another [2020] FCA 1323

SZTFQ v  Minister for Immigration and Border Protection [2017] FCA 562

Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51

Division:

Division 2 General Federal Law

Number of paragraphs:

54

Date of last submission/s:

28 April 2023

Date of hearing:

28 April 2023

Place:

Melbourne

Counsel for the Applicants:

Ms Germov

Solicitor for the Applicants:

Welcome Legal

Counsel for the First Respondent:

Mr Barrington

Solicitor for the First Respondent:

Clayton Utz

ORDERS

MLG 307 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AOC18 

First Applicant

AOD18

Second Applicant

AOE18 (and others named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE CHAMPION
DATE OF ORDER:	14 JULY 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicants are to pay the First Respondent’s costs fixed in the sum of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CHAMPION:

INTRODUCTION

1. The first applicant (the Applicant) is a stateless Arab Orthodox Christian Palestinian woman formerly resident in Israel: (CB86).  She is currently 51 years old.  The Applicant claimed protection on the basis that she had suffered family violence, including sexual abuse, by her husband and that he had threatened to harm her because he had divorced her and married a Muslim woman after he converted to Islam. The second, third and fourth applicants are the Applicant’s (now) adult children (together, the Applicants).

2. On 11 January 2016 a delegate of the Minister (Delegate) decided not to grant the Applicants Protection (Class XA) (Subclass 866) visas (Visas). The Delegate did not accept the Applicant’s claims as “credible”.  In particular, the Delegate did not accept as credible that “in Israel she was a victim of domestic violence by her (ex) husband for a “prolonged period of time” or that she “submitted compelling evidence in support of her claims that she will be subjected to domestic violence by her (ex) husband in the future”: (CB401).

3. On 8 January 2018 the Tribunal affirmed the Delegate’s decision. The Tribunal made a strong adverse credibility assessment as to the Applicant’s evidence. The Tribunal “did not find the applicant to be a reliable, credible or truthful witness, and [found] that she fabricated her claims in order to be granted a visa” (CB591, [48]).

4. By an application made on 6 February 2018 the Applicants sought judicial review of the Tribunal decision.

   THE TRIBUNAL’S DECISION

   The Applicant’s claims

5. The Applicant claimed that her husband had brutally beaten her during her marriage.  The Applicant claimed that her husband harassed her and that she was admitted to hospital “a few times”: (CB586, [9]). The Tribunal identified that the Applicant had said of her husband that “he wanted to control her so they moved into his family home where he built an apartment on the top level for them” (CB586, [9]). During the time they were living in that apartment, she had their first child. After the Applicant gave birth to their second child “her husband started beating her and accusing her of telling family secrets outside the family home”: (CB586, [11]). She had her third child in 2002, “but things between her and her husband were becoming worse”. She suspected that her husband was having a relationship with another woman and that the other woman was Muslim: (CB586, [12]).

6. The Applicant claimed that her husband refused to divorce her and that her church opposed divorce unless she could prove adultery. She stayed with her husband because she was scared that she would lose custody of her children if they divorced: (CB586, [13]-[14]).

7. The Tribunal noted that the Applicant “obtained a visitor’s visa to see her brother who is with the Palestinian delegation in Canberra” (CB586, [15]). When in Australia she approached a lawyer and told him about her husband. After the lawyer made investigations, he found that her husband was married to a Muslim woman. The Tribunal then set out the following (CB586, [16]):

   She was devastated given he could only have done this if he had converted to Islam. She managed to get divorce documents and tried to ignore her husband’s family’s threats but when they threatened the children she became really concerned. If she returned no one could help her, her husband would take them off her and force them to adopt his religion and she would be harassed and abused by him and his Muslim friends. She had received numerous threats via telephone and Facebook saying she didn’t deserve to live. She then decided to seek protection.

8. At a later point in the decision at (CB591, [46]), the Tribunal wrote that the Applicant:

   claimed that if she returned to Israel her husband and his Muslim friends would harm her, take the children and force the children to convert to Islam.

   The Tribunal’s consideration of the Applicant’s claims and evidence

9. As adverted to above, the Tribunal made a strongly worded overall adverse credibility assessment of the Applicant’s evidence (CB591, [48]):

   I found the Applicant’s evidence regarding her claims to lack credibility.  For reasons set out below I did not find the Applicant to be reliable, credible or truthful witness, and that she fabricated her claims in order to be granted a visa.

10. In its consideration of the Applicant’s claims, the Tribunal did not accept the Applicant’s evidence as credible as to any of the major elements of her claim.  The Tribunal did not accept her evidence as to her divorce (CB591-2, [49]-[56]); that she was at risk of harm from her husband (CB592-3, [57]-[59]); that her husband had converted to Islam (CB593, [60]-[62]) or that she had been the victim of sexual abuse by her husband (CB593-4, [63]-[66]).

    JUDICIAL REVIEW APPLICATION

11. In her amended application dated 6 April 2023, the Applicant pressed three (3) grounds of review.

    Ground 1: Was the Tribunal’s failure to make further inquiries as to the genuineness of the divorce certificate(s) legally unreasonable?

12. Ground 1 is as follows:

    1.The Tribunal failed to discharge its statutory task in determining whether Australia owed protection obligations to the Applicant and consequently constructively failed to exercise its jurisdiction.

    Particulars

    (a)The Applicant claimed she had suffered family violence including sexual abuse from her estranged husband and that he divorced her, converted to Islam and married a Muslim woman.

    (b)The Tribunal concluded that the Applicant was not divorced and that she had not suffered family violence based on its rejection of the genuineness of her divorce decree from the Israeli Ministry of Religious Affairs.

    (c)The Applicant forwarded the original of the document which recorded that the Applicant had been granted a Church Divorce from the Ecclesiastical Magistrate Court of the Orthodox Patriarchate of Jerusalem.

13. The Tribunal found that it could give little weight to the divorce certificates (from an ecclesiastical court and/or from the Israeli government) (CB592, [56]). The Applicant contended that it was legally unreasonable for the Tribunal not to exercise its statutory discretion under s. 427(1)(d) of the Migration Act 1958 (Cth) to require the department’s Secretary to arrange for the making of an investigation as to the genuineness of the divorce certificates. The Applicant’s written submissions as to Ground 1 at [AS8] were as follows:

    It would have been a simple matter for the Tribunal to have used its power pursuant to section 427(1)(d) of the Act to request the Secretary of the First Respondent’s Department to arrange for the making of any investigation that the Tribunal thinks necessary with respect to the review. This would have included referring the document to the First Respondent’s Document Examination Unit or the First Respondent could have initiated appropriate enquiries through the Department of Foreign Affairs and Trade. The Tribunal did not indicate in its decision that it had expertise in Israeli documents such that it could be confident in finding that the divorce certificate was not genuine.

    [Emphasis added]

    The statutory framework and legal principle

14. The Tribunal had power under s. 427(1)(d) of the Act to require the Secretary to arrange for the making of any investigation as to the genuineness of the divorce certificate(s). Section 427(1)(d) is as follows:

    427  Powers of the Tribunal etc.

    (1)  For the purpose of the review of a decision, the Tribunal may:

    […]

    (d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

15. It was common ground that s. 427(1)(d) did not impose any duty on the Tribunal to exercise an inquisitorial power by causing an investigation to be undertaken: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [22].

16. The discretion in s. 427(1)(d) is like any other statutory discretion: unless there is a clear contrary intention, it is understood to be conditioned by the requirement that it be exercised in a legally reasonable way: Minister for Immigration and Citizenship v. Li (2013) 249 CLR 332; [2013] HCA 18 [23]-[26] (French CJ); [63] (Hayne, Kiefel and Bell JJ): [88] – [92] (Gageler J).

17. In Minister for Immigration and Citizenship v. SZIAI (2009) 83 AJLR 1123; [2009] HCA 39 the High Court plurality held:

    [20] The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.

    [25] …The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.

    [Emphasis added]

    Applying the principles to this case

18. The Tribunal did not accept that “the Applicant is divorced from her husband”: (CB 591, [49]). It found her account of the “entire process [of her divorce] was vague and the documentary evidence to support the claim [was] either lacking or such that little weight could be given to it”. The Tribunal noted that the Applicant claimed that she did not know that the divorce proceedings had been initiated against her, “let alone finalised”: (CB 591, [49]). In not accepting her evidence as to the divorce, the Tribunal noted (among other matters) that the Applicant was not “remotely aware of what if any decision was made regarding child custody and visitation, alimony, division of property or the like”: (CB 591, [51]). The Applicant claimed that, by Israeli law, she was entitled to the children even though the country information available to the Tribunal was that it was for the court to determine child access arrangements: (CB 591-592, [52]).  As to communications with her divorce lawyer, the Applicant was unable “to provide any evidence of the type of correspondence one would expect between a lawyer and client” as to the divorce: (CB 592, [53]).

19. The Applicant had also provided copies of divorce certificates to the Tribunal from different sources (a religious court and the Israeli state). The Delegate had noted that in Israel separate religious court systems adjudicate matters such as marriage and divorce for Jewish, Muslim, Christian and Druze communities: (CB397). As to the divorce certificates, the Tribunal reasoned that the “documentary evidence [was] […] such that little weight could be given to it”: (CB591, [49]). Specifically as to the divorce certificates, the Tribunal said the following (CB592, [56]):

    The one written in Greek looks as if it have been produced on any computer or using a photocopied blank form. The Israeli document is also untranslated and, while it has a sticker and stamps on its back allegedly from the Israeli Ministry of Foreign Affairs, I notice the rubber stamp and the signature in the bottom left corner of the original appears to be aligned differently to the same in what is purportedly a photocopy of the original (also no folio) which raises serious questions as to their veracity. As a consequence of all these concerns I am unable to lend these documents much weight.

    [Emphasis added]

20. The parties referred to several authorities as to the Tribunal’s duty to make inquiries. Each case applied the relevant principle set out in SZIAI (at [25]) that a failure to make an inquiry will only be legally unreasonable (and thereby constitute a jurisdictional error) if the inquiry is "obvious", about a “critical fact" and the critical fact will be "easily ascertained”. Each case turned on its own facts. I was also referred to Aronson & Others "Judicial Review of Administrative Action and Government Liabilities" (7^th Ed) in which the authors at [6.190] wrote:

    As indicated in SZIAI, the decision-maker's responsibility was never pitched higher than having to make obvious enquiries in circumstances requiring little effort and no real inconvenience to the decision-maker […] Further, in many if not most of the cases (and as in SZIAI itself), further inquiry may well have been obvious, but there was no particular reason why the applicant should not have borne the responsibility.

21. In Singh v. Minister for Immigration and Another [2020] FCA 1323, Judge Egan found a failure to make inquiries of an Indian police department about an arrest warrant constituted a jurisdictional error. In Singh, Judge Egan noted departmental offices had had “direct dealings” with Indian police personnel and “the lines of communication were clearly open”: Singh at [22]. In that sense, because lines of communication open, the existence of the arrest warrant was a fact “easily ascertained.” This case was distinguishable from Singh as there had been no dealings between departmental officers and the ecclesiastical court in Israel or the Israeli government. There were no open lines of communication such that facts as to the authenticity of the divorce certificates were “easily ascertained.”

22. In Wei v. Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 [51], Nettle J found that there was a jurisdictional error in the delegate’s failure to make an inquiry of an Australian university as to the visa applicant’s enrolment status. An inquiry of an Australian university about a student’s enrolment is distinguishable from an inquiry of an Israeli ecclesiastical court about the genuineness of a divorce certificate and for several reasons is not a fact “easily ascertained”. First, the proposed inquiry in this case was of an organisation and/or government in another country. Second, in contrast with enrolment arrangements at an Australian university, it is unlikely that the Tribunal will be familiar with the ecclesiastical court’s operations. Third, it is unknown whether an investigation of an ecclesiastical court about the authenticity of a divorce certificate will yield an easily ascertained answer.

23. The proposed investigation in this case more closely resembled facts in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v. FOE17(2020) 276 FCR 19; [2020] FCAFC 73. In FOE17, at issue was the tribunal’s failure to make an inquiry of UK authorities as to whether the visa applicant’s UK passport was genuine or fraudulently obtained. At [70] the majority said the following as to whether, by inquiry, a fact would be “easily ascertained”:

    […] the existence of the fact must be easily ascertained. There was no evidence before the primary judge about how the information could have been obtained, how the UK authorities could have been approached, the information that would have been sought and the information the UK authorities may have been able to provide in relation to the veracity or otherwise of SV’s passport. For example, in order for the UK authorities to establish whether the passport is genuine they may need access to the passport itself. There was no evidence explaining whether such access would in fact be required and, if so, how the passport could then be produced to the UK authorities. In other words there was nothing before the primary judge to demonstrate that the information could be easily ascertained.

    [Emphasis added]

24. As in FOE17, there was no evidence before the court as to how the Secretary might undertake inquiries of an Israeli ecclesiastical court beyond the Applicant’s broad submission that the Department of Foreign Affairs and Trade make appropriate inquiries.  It was not clear whether the ecclesiastical court would have required copies of the documents provided to the Tribunal to be provided to it so that they could compare those documents with their own records to assess their authenticity.  If it was proposed that documents the Applicant had provided to the Tribunal would be on-forwarded to the Israeli ecclesiastical court, it was not clear how that was to occur.

1. Alternatively, the Applicant contemplated that it may have been appropriate to have the documents examined by the Departmental Document Examination Unit [AS8]. The proposed examination of the documents supports a conclusion that the facts as to the authenticity of the documents was not in fact “easily ascertained” because (on this approach) some form of forensic examination of the documents might be required and an expert opinion offered as to their authenticity. There is some force in the Applicant’s submission made with reference to the Tribunal’s finding set out above (CB592, [56]) that the Tribunal “did not indicate in its decision that it had expertise in Israeli documents such that it could be confident in finding that the divorce certificate was not genuine” [AS8].   As to this issue, I accept the First Respondent’s submission that an accurate characterisation of the Tribunal’s finding was more limited. It was as follows: “the Tribunal did not make a finding that the divorce documents were bogus.  Properly understood, the Tribunal did not consider that the documents overcame its significant credibility concerns”. Those credibility concerns were anchored in the Applicant’s oral evidence as to her divorce including her account of the entire process being “vague” (CB591, [49]), including that she had no knowledge as to the court’s orders about child access arrangements and could not provide evidence of her correspondence with her divorce lawyer.

2. The Tribunal did not make a positive finding as to the veracity of the divorce certificates and did not claim the expertise to do so. There were unexplained differences between a copy-document the Applicant had provided before the hearing (CB268) and a document described by the Applicant as the "original divorce certificate" (CB514) which she provided after the hearing (CB515). Given the unexplained differences between the documents, it was not legally unreasonable for the Tribunal not to lend much weight to the divorce certificates and instead to proceed to base its conclusions on its staked concerns about the Applicant’s oral account of her divorce. Finally, I also note that the Applicant submitted that the legal unreasonableness was the failure to require the making of an investigation. This submission can be distinguished from a submission that the Tribunal’s conclusion that it could not lend the divorce certificates much weight was (in and of itself) legally unreasonable because the Tribunal lacked the expertise to make such a finding. The Tribunal did not claim for itself the expertise to make a definitive finding as to the documents’ authenticity. It made a more limited conclusion: that it could not give them much weight.

3. It remained for the Applicant to make her case. Section 5AAA of the Act provides that “it is the responsibility of the non-citizen to specify all particulars of his or her claim to be [a person in respect of whom Australia has protection obligations] and to provide sufficient evidence to establish the claim”. The Applicant’s responsibility to specify all particulars under s. 5AAA co-exists in the statutory scheme with the Tribunal’s obligation to exercise its discretion under s. 427(1)(d) in a legally reasonable way. In rejecting a submission that the tribunal ought to make inquiries as to a police submission to a Sri Lankan magistrate in BDS17 v Minister for Immigration and Border Protection (2018) 76 AAR 246; [2018] FCA 1683, [100] Flick J said as follows:

   The present argument is rejected because:

   ·     the obligation primarily rested upon the now-Appellant to place before the Tribunal the documents and other evidence upon which he sought to place reliance;

   ·     left unexplained is what inquiries had been made by or on behalf of the now-Appellant as to those persons from whom further information could have been obtained and why any requirement to make such inquiries should be shifted from the now-Appellant to the Tribunal;

   [Emphasis added]

4. In my view, it may be fairly said that inquiries of an Israeli ecclesiastical court about the authenticity of the document were “obvious” and about a “critical fact”. Ground 1 fails because facts as to the genuineness (or otherwise) of divorce documents apparently prepared by an Israeli religious court and/or the Israeli government were not necessarily facts “easily ascertained” by causing an investigation to be undertaken. If the facts were easily ascertained, there was no particular reason for the Applicant not to bear the responsibility of proving the authenticity of the documents and why the responsibility of proving the authenticity of the documents should be shifted to the Tribunal: BDS17.

   Ground 2: Was the Tribunal’s decision illogical and unreasonable as to the issue of whether the Applicant’s marital status was relevant to whether she was at risk of harm from family violence?

5. Ground 2 was as follows:

   The Tribunal fell into jurisdictional error by making a finding which was legally unreasonable, illogical or not based on evidence in that there was no basis for it concluding that the Applicant did not suffer family violence based on its rejection of the genuineness of the divorce certificate.

6. The Tribunal did not accept that the Applicant was at risk of future harm or abuse by her husband. The Tribunal said the following at (CB 592-3, [57]-[58]):

   57.Because I do not accept that the Applicant has been divorced from husband it follows that their relationship is not as described by her and that he is not seeking to harm her.  The latter claim relies on the oral testimony of the Applicant, which I have found lacks credibility.

   […]

   58.Despite claiming that the abuse and violence from her husband got worse after 1998, there was no attempt to report this to the police. I do not accept that this was because of her father’s attitude to marriage given it relies solely on her oral evidence. I also note that she and the children were allowed to travel to the US in 2013 without her husband and yet she never applied for protection while there.  I do not accept that it didn’t occur to her, that all her husband’s family were in the US or that she thought her husband could come to the US and take the children away.

7. Further, the Tribunal held that the Applicant’s willingness to return to Israel after her trip to the United States in 2013 was “not indicative of someone who fears serious harm from her husband.”  (CB 593, [59]).

8. After the first Tribunal hearing, the Applicant made a claim that her husband had sexually abused her during their marriage (CB593) and there was a second hearing. The Tribunal did not accept that claim. The Tribunal’s reasons were as follows (CB593, [63]–[64]):

   63.Post-hearing the adviser made a written claim that the Applicant had been sexually abused by her husband (no folio). This is a very serious claim and a new hearing on this was conducted. The Tribunal is alert to the sensitivities of the issue, however I am not satisfied that such abuse ever occurred. She had not previously mentioned it to the Tribunal, has never reported it to the Israeli or Australian police, and never approached any Israeli or Australian shelter/organisation to seek help in this regard.

   64.Although she said she had been referred to a psychologist in Australia, she claimed this was for depression. She also stated that she had mentioned this issue in general to the Red Cross however there is no evidence to support this claim. The Tribunal notes the seriousness and sensitivity of such an issue, however given the lack of supporting evidence, her overall lack of credibility as a witness and the lateness of such a claim I am not satisfied that such abuse ever occurred.

9. The Applicant submits that the Tribunal’s reasons at [57] reveal that the Tribunal engaged in an illogical, irrational or unreasonable process of fact-finding. The Applicant’s submission was that her marital status was not logically or rationally determinative of whether (or not) she experienced family violence.  All too often, there is terrible family violence within marriage.  As the Applicant submitted [AS 9]: “it is contended that this conclusion is a complete non sequitur. The Applicant’s marital status cannot be considered determinative of whether or not she experienced family violence”.

   Legal Principles

10. A decision might be illogical or irrational if:

    (a)“there is no logical connection between the evidence and the inferences or conclusions drawn”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, [135] (Crennan and Bell JJ); or

    (b)if the decision-maker has “reasoned illogically or irrationally”: Li [72] (Kiefel and Bell JJ); or if a conclusion lacks an “evident, transparent and intelligible justification”: Li, [76] (Kiefel and Bell JJ), [105] (Gageler J).

11. The Applicant submitted that the Tribunal’s reasoning process was illogical in the requisite sense because it amounted to a “complete non sequitur.”

12. I do not read para. [57] of the Tribunal’s reasons as a statement of a conclusion that because it found that the Applicant was not divorced, that enabled it to infer or conclude that the Applicant had not experienced family violence.  

13. At [57] the Tribunal referred to two concepts: first, that the Tribunal did not accept that the Applicant’s evidence that her relationship was as described by her (married or divorced); and second, that the Tribunal did not accept the Applicant’s husband was trying to harm her. On a fair reading of the passages set out above Tribunal did not say that the Applicant’s marital status determined whether (or not) her husband was seeking to harm her. Rather, it was the Applicant’s “oral testimony” that determined the “latter claim” as to whether the Applicant’s husband was trying to harm her. As to that claim, the Tribunal found that the Applicant’s oral testimony lacked credibility. The Tribunal found that the Applicant’s claim that she was subject to abuse lacked credibility for several reasons: she had not reported the violence to the police; she was willing to return to Israel after her trip to the United States; and she had not sought help from any Israeli or Australian shelter or organisation (CB592-4, [58]-[59], [63]-[64]). The Tribunal’s finding that the Applicant’s oral testimony lacked credibility because of these several reasons was an “evident and intelligible justification” for the Tribunal’s conclusion that it did not accept that the Applicant’s husband was trying to harm her.

14. In addition, to some extent, the Tribunal was entitled to have regard to its non-acceptance of the Applicant’s evidence as to her marital status as an issue which affected her credibility more broadly including as to the issue of whether her husband was trying to harm her. A credibility finding as to one issue can have a ripple effect and infect an overall credibility conclusion. Justice Lee held: "it is not realistic to put the various aspects of the appellant’s evidence into hermetically sealed boxes”: SZTFQ v.  Minister for Immigration and Border Protection [2017] FCA 562, [44]-[45]. Disbelief of the Applicant’s evidence as to one issue (divorced or married) was likely to have a ripple effect as to a broader assessment of the Applicant’s credit including as to other issues. It was not illogical or irrational for the Tribunal’s disbelief of the Applicant as to her marital status to be one issue weighed in the scales in the decision-maker’s determination of other issues as to the Applicant’s overall credit.

15. The reasoning was not unjust, arbitrary or capricious or lacking in a transparent and intelligible foundation so as to be characterised as legally unreasonable.  It was within the Tribunal’s area of “decisional freedom” (Minister for Immigration and Border Protection v. Stretton (2016) 237 FCR 1; [2016] FCAFC 11, [92] (Wigney J)) to reason that, because it did not accept her evidence as to her marital status, that was also a factor to which it was entitled to have regard in not accepting her evidence that her husband was seeking to harm her.

16. Ground 2 has not been made out.

    Ground 3: Did the Tribunal fail to deal with an integer of the Applicant’s claim, namely whether the Applicant could avail herself of the protection of the Israeli authorities?

17. Ground 3 is as follows:

    The Tribunal failed to deal with an essential integer at the Applicant’s claim that she did not go to the Israeli authorities concerning her husband’s family violence because she was a stateless Arab Christian Palestinian residing in Israel and the Israeli authorities were not interested in protecting her

18. As to Ground 3, the tribunal Transcript (Exhibit A1) of the 15 August 2017 hearing contained the following (Transcript 15, Lines 25-37) in the context of a discussion of whether the Applicant had reported certain Facebook threats to the Israeli police:

    MEMBER: Okay, so you got these in January?

    APPLICANT:        Yes.

    MEMBER: Did you report them to anybody?

    APPLICANT:        Anybody from my part or his part?

    MEMBER: To anybody you know, Israeli Police or, you know, somebody?

    APPLICANT:        No, I haven't. I haven't told anyone and even there would be no one to help me with this, we are Arabs after all.

    [Emphasis added]

19. At the resumed hearing on 21 December 2017 hearing there was this exchange at the Tribunal as to the Applicant’s claims of sexual abuse (T29, L15-8):

    MEMBER: Okay.  Is there anything you would like to say about this issue?  I understand it is potentially very sensitive but I have to address it because you have raised it.

    APPLICANT:        It wasn’t possible for me to go to the police and I feel as a lack of support there and even if I do they would not support me at all and I was – I was too scared I couldn’t have raised this issue because I have three kids.

    MEMBER: Are there any women’s organisations in Jerusalem that you could have gone to, rather than the police?

    APPLICANT:        Yes, I was so scared and I was so embarrassed and scared to talk about this issue with anyone.  I am always at home, I have no connection with anyone.

    [Emphasis added]

20. The Applicant submits [AS12] as follows:

    This clearly raised the issue of whether the Applicant could avail herself of the protection of the Israeli authorities. There is nothing in the Tribunal’s decision in relation to the degree of protection that is provided to stateless Palestinian Arabs residing in Israel. It is contended that this is a material issue as to whether the Applicant’s fears for her safety are well-founded.

    [Emphasis added]

    Legal Principles

    A “well-founded fear of persecution”

21. Certain international obligations and concepts which have their source in the 1951 Convention Relating to the Status of Refugees (the Convention) are now codified by the Act. As to a “well-founded fear of persecution”, ss. 5J(1) and (2) of the Act are as follows:

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)there is a real change that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)the real chance of persecution related to all areas of a receiving country.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    [Emphasis in original]

22. At a level of basic principle, as to the Convention concept of a person having a well-founded fear of persecution in their country of origin in Islam v Secretary of State for The Home Department; Regina v  Immigration Appeal Tribunal and Another, ex parte Shah (1999) 2 AC 629 (Islam; ex parte Shah) (a case which concerned Pakistani women having a well-founded fear of persecution in their country of origin because of threats of violence from their husbands) Lord Hoffman observed at 653E-F:

    What is the reason for persecution which the appellants fear? Here it is important to notice that it is made up of two elements. First, there is the threat of violence to Mrs. Islam by her husband […] And to Mrs Shah by her husband. This is a personal affair directed against them as individuals. Secondly, there is the inability or unwillingness of the state to do anything to protect them. There is nothing personal about this. The evidence was that the state would not assist them because they were women. It denied them a protection against violence which it would have given to men. These two elements have to be combined to constitute persecution within the meaning of the Convention.  As the Gender Guidelines for the Determination of Asylum Claims in the U.K. (published by the Refugee Women’s Legal Group in July 1998) succinctly puts it (at p. 5): “Persecution = Serious Harm + The Failure of State Protection.”

    [Emphasis added]

    Duty to consider claims

23. In AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18], a Full Court held that as to the Tribunal’s duty to consider claims and issues arising from the material before it:

    ·     The Tribunal review function requires it to consider all claims made by an Applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

    ·     The Tribunal is only required to consider such claims where they are either:

    (a)the subject of substantial clearly articulated argument, relying on established facts; or

    (b)clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67])

    […]

    [Emphasis in original]

    Application of the principles to this case

24. The Applicant’s claim was that she had been the subject of sexual abuse by her husband.  She also said, by way of material or evidence in support of that claim, as a woman in that predicament, effective protection measures were not available to her in Israel because she was an Arab and/or stateless Palestinian. Having regard to Lord Hoffman’s formulation in Islam; ex parte Shah, the Applicant’s well-founded fear of persecution was the result of serious harm plus the failure of State protection. Put slightly differently, “these two elements have to be combined to constitute persecution within the meaning of the Convention” (Islam; ex parte Shah; 653F; emphasis added).

25. The Tribunal squarely considered and rejected the Applicant’s claim that she was at risk of serious harm because of violence or sexual abuse by her husband. As set out, the Tribunal made an overall adverse credit finding (CB591, [48]) that the Tribunal “did not find the Applicant to be a reliable, credible or truthful witness, and that she fabricated her claims in order to be granted a visa.”  In my view, that adverse finding as to the Applicant’s credibility has not been successfully impugned on this application for judicial review.

26. The Tribunal did not make a separate finding as to whether it accepted the Applicant’s contention that there was no point in making a complaint to the Israeli police, because as a Palestinian Arab residing in Israel she could not avail herself of the protection of the Israeli authorities. I accept that the Applicant made a claim that she could not avail itself of the protection of the Israeli authorities. I also accept that issue “clearly emerges” from the material: AYY17 at [18].  However, the Applicant framed her claim for a protection visa on the basis that it had two combined elements: her husband had subjected her to prolonged abuse (and she was at risk of that abuse continuing if she returned to Israel) and as a Palestinian Arab residing in Israel the state did not provide effective protection to her. She needed to satisfy the Tribunal as to both of those combined elements to be entitled to a protection visa. She needed to establish the personal element of her claim (that she was the subject of abuse by her husband) before the second issue (as to whether effective protection measures were available) was relevant. In my view, the availability (or not) of effective protection measures was not a standalone integer of her claim.

1. Alternatively, Approached from a different point of view, if there was an error (which in my opinion there was not), any failure to consider that claim was not material. Had the Tribunal separately considered the issue it could not have materially affected the decision made: Hossain v. Minister for Immigration and Border Protection (2018) 264 CLR 123, [2018] HCA 34, [29] (Kiefel CJ, Gageler and Keane JJ). Considering the counter-factual, even if the Tribunal had made an express finding that there was no point in the Applicant making a complaint to the Israeli police because she was a Palestinian Arab, her claim could not be successful unless she had also persuaded the Tribunal that she was at risk of future harm from her husband.

2. Ground 3 has not been made out.

   CONCLUSION

3. The application will be dismissed. 

4. The Applicants are to pay the First Respondent’s costs fixed in the sum of $8,371.30.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.

Associate: CH

Dated:       14 July 2023

SCHEDULE OF PARTIES

MLG 308 of 2018
Applicants
Fourth Applicant:	AOF18