Atr17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FCA 1122
•16 September 2022
FEDERAL COURT OF AUSTRALIA
ATR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1122
Appeal from: ATR17 v Minister for Immigration & Anor [2020] FCCA 709 File number: NSD 444 of 2020 Judgment of: JAGOT J Date of judgment: 16 September 2022 Date of publication of reasons: 20 September 2022 Catchwords: MIGRATION — appeal against Federal Circuit Court’s dismissal of judicial review before Administrative Appeals Tribunal of refusal to grant protection visa — where Tribunal considered evidence before it and was entitled to reach findings — no legal error — immaterial referencing error regarding non-disclosure certificate — primary judge assessed materiality of certificate under s 438(1)(a) of Migration Act — appeal dismissed with costs Legislation: Migration Act 1958 (Cth) ss 375A, 438(1)(a) Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 11 Date of hearing: 16 September 2022 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr T Hillyard of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 444 of 2020 BETWEEN: ATR17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JAGOT J
DATE OF ORDER:
16 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs as agreed or assessed.
3.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
This is an appeal against an order made by the Federal Circuit Court of Australia, as it was. In ATR17 v Minister for Immigration & Anor [2020] FCCA 709 the primary judge dismissed the appellant’s application for review of a decision of the Administrative Appeals Tribunal (the second respondent) made on 1 February 2017. The Tribunal affirmed the decision of the Minister for Immigration, Citizenship and Multicultural Affairs (the first respondent) not to grant the appellant a protection visa.
The notice of appeal filed in this Court has six grounds. Those six grounds are as follows:
1.The Administrative Appeals Tribunal erred in its judgment in consideration of applicants’ evidence regarding sexually molestation from family members in Malaysia.
2.The Administrative Appeals Tribunal denied the applicants procedural fairness by reaching adverse conclusion that the applicant claims were not made out about her mental status.
3.The Administrative Appeals Tribunal erred in its judgment not considering Malaysian conservative society with explicit claim of sexual harassment and made factual and legal error.
4.The Administrative Appeals Tribunal in its judgment failed to consider country information in context of applicants’ circumstance in Malaysia.
5.Federal Circuit Court Hon. Jude made legal error even Minister provided s375A certificate not provided to the applicant.
6.The Hon. Federal Circuit Court Judge did give enough consideration of applicant claim of sexual harassment by family members.
As the Minister has pointed out, some of these grounds were not raised before the Federal Circuit Court. As a result, the appellant requires leave to raise grounds 1, 2 3, and 4 in the notice of appeal. The Minister opposes leave being granted.
The first ground of appeal alleges that the Tribunal erred in its consideration of the evidence of the appellant regarding her sexual molestation from family members in Malaysia. It is apparent that the Tribunal considered the appellant’s evidence in this regard, in particular at [25]–[31] of its reasons. There is also further reference to the appellant’s evidence in the attachment to the Tribunal’s reasons, in particular at [61]. The Tribunal was entitled to reach the conclusion which it did, which did not reject the appellant’s evidence but rather concluded that the evidence did not satisfy the Tribunal that the appellant has a well-founded fear of a real chance of persecution for a relevant reason if she had to return to Malaysia.
Ground 2 is that the Tribunal denied the appellant procedural fairness by reaching adverse conclusions about her mental status. This ground is unclear. The Tribunal considered the evidence before it and was entitled to reach the conclusions it did.
Ground 3 alleges error in the Tribunal not considering the nature of Malaysian society, in particular that it is conservative with respect to claims of sexual harassment. However, the Tribunal did consider this issue, in particular at [27] of its reasons.
Ground 4 is that the Tribunal failed to consider country information in the context of the appellant’s circumstances in Malaysia. As I have said, however, the Tribunal did consider country information at [27] of its reasons. As the Minister has submitted, the choice and assessment of country information for consideration is a matter for the Tribunal to determine.
Ground 5 is that the primary judge made a legal error relating to what was described in the primary judge’s reasons as the Minister providing the Tribunal with a certificate under s 375A of the Migration Act 1958 (Cth) (the Migration Act). As the Minister has pointed out, the reference to ss 375A/357A in the primary judgment is a mistake. The correct section is s 438(1)(a) of the Migration Act. However, this is an immaterial referencing error in the reasons for decision of the primary judge. The primary judge, at [21] of the reasons for decision below, assessed and rejected the materiality of the fact that the Tribunal had this certificate and the information which it covered, in circumstances where the appellant was not aware of either circumstance.
The certificate and the documents covered by the certificate are in the appeal book. I have considered the material covered by the certificate, as did the primary judge. The documents covered by the certificate are of a purely administrative nature. I agree with the primary judge that if the certificate had not existed and/or if the appellant knew about the certificate and the documents covered by it, it could not have made any possible difference to the outcome of the review for the Tribunal. I agree with the primary judge’s description of the documents, at [21] of the reasons, that they are “immaterial departmental business records”.
Ground 6 is that the primary judge did not give sufficient consideration to the appellant’s claim of sexual harassment by family members. The primary judge dealt with the appellant’s grounds of review as put before him. While ground 5 below referred to the issue of sexual molestation, the primary judge noted that the issue was the approach of the Tribunal to the relevant law and noted also that this ground, amongst others, was not particularised, and that the appellant had not advanced any meaningful argument in support of it (see [14]–[15] of the primary judge’s reasons).
For these reasons, I agree with the Minister that the appeal does not disclose any ground of relevant legal error which would permit the appeal to be allowed.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot. Associate:
Dated: 20 September 2022
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