AUB16 v MIBP
[2017] FCCA 2634
•31 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUB16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2634 |
| Catchwords: MIGRATION – Application for judicial review – separation of family members – whether the Tribunal failed to correctly apply the law – whether the Tribunal considered all the integers of the claim – application allowed. |
| Legislation: Migration Act 1958 (Cth), s.36(2)(aa) |
| Cases cited: Minister for Immigration and Citizenship v SZQOT [2012] FCAFC 141 |
| First Applicant: | AUB16 |
| Second Applicant: | AUC16 |
| Third Applicant: | AUM16 |
| Fourth Applicant: | AUN16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 712 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 19 July 2017 |
| Date of Last Submission: | 19 July 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2017 |
REPRESENTATION
| Counsel for the Applicants: | Mr Barrington |
| Solicitors for the Applicant: | Holding Redlich |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue, quashing the decision of the Second Respondent dated 24 March 2016.
A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law.
The First Respondent pay the Applicants costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 712 of 2016
| AUB16 |
First Applicant
| AUC16 |
Second Applicant
| AUM16 |
Third Applicant
| AUN16 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first applicant is a 35 year old Malaysian woman, married to the second applicant, a 33 year old Nigerian citizen. The third and fourth applicants are the children of the first and second applicants (a son aged five and a son aged three). The third applicant is a Malaysian citizen, and the fourth applicant, who was born in Melbourne, is a Nigerian citizen.
The first applicant came to Australia in August 2012 on a student visa. She was joined by her partner and eldest child in May 2013 (also pursuant to the student visa). In October 2013, the first and second applicants applied for protection visas (including their child as a dependent; their second child being added by operation of law when he was born in April 2014).
In December 2014, a delegate of the Minister refused the applicants a visa, and they sought review in the Refugee Review Tribunal (now known as the Administrative Appeals Tribunal (“AAT”). They were assisted by a migration agent in the review application. The agent lodged written submissions with the Tribunal on behalf of the applicants in March 2016, and the Tribunal heard oral evidence from them in the same month. On 24 March 2016, the Tribunal affirmed the delegate’s decision refusing the visa.
The applicants’ protection visa applications were based upon a claim that they had fled Malaysia fearing persecution by Malay gangsters associated with the first applicant’s family, claiming that they do not have the option to reside in Nigeria on the basis that the second applicant would be persecuted by Boko Haram (see court book p.32).
The Tribunal accepted that the first applicant’s parents did not approve of the relationship because the second applicant was black. However, the Tribunal did not accept that the first applicant’s family had arranged for gangsters to harass, threaten, intimidate, assault or kill the first and second applicant. The Tribunal rejected their claims with respect to the gangster issues in Malaysia, identifying a number of difficulties with their evidence at paras.70 to 79.
The claim relating to Boko Haram was also rejected by the Tribunal, saying:
86. At the hearing applicant 2 indicated that he attended secondary school in Lagos for 5 years, went to University in Imo state for five years, then worked in Imo state for a year and in Lagos for two years before travelling to Malaysia in 2008. Accordingly, it is clear that the applicant lived, studied and worked in south Nigeria for 13 years before he travelled to Malaysia in 2008. He also indicated to the Tribunal that he continued to operate his motor spare parts business in Malaysia after his father was killed, sourcing spare parts for clients from Pakistan and Afghanistan. While applicant 2 was not forthcoming at the hearing regarding his brothers, and it was claimed in the submission of 2 March 2016 that applicant 2 does not have any related family in Nigeria, in response to questioning by the Tribunal applicant 2 indicated that all three of his brothers and his mother are living in Imo state in southern Nigeria. Two are working in the Palm oil plantation business and one is studying, attending the Federal University of Technology in Imo state. The Tribunal does not accept, therefore, that applicant 2 has no place to go in Nigeria or that his source of livelihood has been destroyed. Based on consideration of applicant 2’s circumstances since 1995 and the relevant country information from DFAT, the Tribunal concludes that he could return to southern Nigeria, where he has lived, studied and worked previously, and where he has close family, and there would not be a real chance that he and his family, including applicant 4, will suffer persecution amounting to serious harm or a real risk that that they will suffer significant harm from Boko Haram now or in the foreseeable future.
The Tribunal also considered their claim that there was a risk of kidnapping in Nigeria, including:
89. The Tribunal has considered the applicants’ claim that applicant 1 will be at higher risk of kidnapping because of her fair complexion. In the submission of 2 March 2016 it was claimed that applicant 2 does not have any related family in Nigeria and thus he does not have relatives to help him there to protect his wife. As indicated above, this is not the case, he has three brothers living in Imo state. In considering this claim the Tribunal has had regard to country information that indicates that Nigeria is a highly diverse nation made up of hundreds of different ethnicities (DFAT County Report, Nigeria, 1o February 2015, section 3.1.) and that there is a Chinese community in Nigeria estimated to number 20,000 people (China-Nigeria Relations, Embassy of the People’s Republic of China in the Federal Republic of Nigeria, sourced at on 23 March 2016). Noting the reported number of kidnappings in a population of 173 million people, the most common targets for such kidnappings (visibly high wealth individuals), and the locations where the risk of kidnap is highest, and noting that applicant 2’s family are residing in Imo state, one of the safer locations in Nigeria, where he himself previously spent 6 years, the Tribunal assesses that there is not a real chance or a real risk that applicant 2 will be harmed seeking to defend applicant 1 from a kidnap attempt should the applicants travel to Nigeria, now or in the foreseeable future.
Other claims, relating to the caste system and an allegation that the second applicant’s mother was poisoned were also rejected (see paras.90 and 91).
With respect to the general security situation in Nigeria, the Tribunal concluded:
92. The applicants raised the general security situation in Nigeria. Based on the DFAT Country Report and the DFAT Travel Advice the Tribunal accepts that the security situation is volatile, there is a possibility of violent civil unrest and that there is a relatively high level of violent crime. It is clear that individuals living in Nigeria need to exercise caution in relation to their personal security. However, for the reasons outlined above, the Tribunal finds that the applicants will not be a target for harm, and that there is not a real chance that they will suffer persecution amounting to serious harm should they return to Nigeria, now or in the reasonably foreseeable future.
Thereafter the Tribunal said:
93. As the Tribunal has found that there is not a real chance that the applicants would suffer persecution should they return to Malaysia or to Nigeria, the Tribunal finds that the applicants would not require the protection of the authorities in either Malaysia or Nigeria.
Do applicants 1 and 3 have a well-founded fear of persecution if they returned to Malaysia and/or do applicants 2 and 4 have a well-founded fear of persecution if they returned to Nigeria?
94. Having considered the applicants’ claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that applicants 1 and 3 will suffer persecution amounting to serious harm if they were to return to Malaysia, now or in the foreseeable future. For the reasons given above, the Tribunal also does not accept that there is a real chance that applicants 2 and 4 will suffer persecution amounting to serious harm if they were to return to Nigeria now or in the foreseeable future.
95. Accordingly, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).
The Tribunal then turned to consider the complementary protection provision. On the basis of the Tribunal’s earlier findings, the only matter that could come within s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) was the volatile security situation in Nigeria. The Tribunal considered this, finding:
98. In relation to applicants 2 and 4, the tribunal accepts that the security situation in Nigeria is volatile, that there is a possibility of violent civil unrest and that there is a relatively high level of violent crime. It is clear that individuals living in Nigeria need to exercise caution in relation to their personal security. However, for the reasons outlined above, and considering the application of s.36(2B)(c) of the Act, which states that there is not taken to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally, the Tribunal finds that there is not a real risk that applicants 2 and 4 will suffer significant harm should they return to Nigeria, now or in the foreseeable future.
The applicants rely upon three grounds for judicial review, all of which are premised upon an argument that the Tribunal failed to consider an integer of the claim, being the potential separation of the family unit on the basis that the first and third applicants would be removed from Australia to Malaysia and the second and fourth applicants removed from Australia to Nigeria. On this scenario, the family unit would be separated.
Relying upon Minister for Immigration and Citizenship v SZQOT [2012] FCAFC 141 (“SZQOT”), the applicant argued that separation from family is capable of giving rise to protection obligations under the Convention. This was applied in MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620 (“MZAEN”) where Judge Riley concluded that the Tribunal in that case should have considered whether any psychological harm might be suffered as a result of the separation of family members and whether this would be the consequence of persecution for Convention reasons (see para.46).
As the applicants identify, on the face of the reasons of the Tribunal, it did not consider the separation of the first and third applicants from the second and fourth applicants in this case.
Whilst there are three grounds for review, each relies upon the same fundamental premises, and, therefore, it is convenient to deal with this issue.
Counsel for the Minister points out that the second applicant had lived in Malaysia from October 2008, studying there and marrying a Malaysian national before operating a car-parts business. He also remained in Malaysia with the first child after the first applicant came to Australia to study in August 2012, before joining her in May 2013.
In a statement made to the Department in support of the visa application in 2012 (some 16 months after the claimed gangster threats, which were rejected by the Tribunal), the second applicant stated that it was his intention to establish a workshop in Malaysia where he would be fabricating exhaust parts for cars and sending them back to Nigeria and that he and his wife were considering setting up a cottage maternity hospital in East Malaysia, in an area from where his wife comes.
It is apparent that the case was put before the Tribunal on the basis that the first and second applicants would be living together either in Malaysia or in Nigeria, the case in Malaysia largely relating to discrimination against the second applicant on the basis of his ethnicity, and the case in Nigeria largely relating to discrimination against the first applicant on the basis of her ethnicity. That is, the claim was premised on the assumption that they would be living as a family in either Malaysia or Nigeria. There is nothing in the material to indicate any concerns by the first and second applicant that they either had no right to reside in each country or would be unable to obtain visas or authorities to live together in either Malaysia or Nigeria, nor any evidentiary basis for any harm that may flow from such consequences.
It was argued that Judge Riley, in MZAEN, found that a Tribunal fell into jurisdictional error by failing to consider separation of a family even though such an integer was not expressly raised by the parties.
It is clear from para.41 of her Honour’s judgment that she concluded that the Tribunal had found that separation of family members was incapable of amounting to significant harm under the Act, which was an error of law. In SZQOT, Nicholas J said:
64. Depending on the facts of a given case, it may be open to a decision maker to conclude that a husband had a well founded fear of persecution if, for example, widespread discrimination against couples on racial or religious grounds made it impossible for the husband to live with his wife without fear of them being harassed. The husband and the wife might then be forced to live apart. The husband’s fear of persecution does not necessarily cease once the husband and wife cease to live together unless, of course, the husband and wife do not wish to live together for some reason apart from fear of further harassment.
In the decision made by Judge Riley in MZAEN, the first applicant was a national of Lebanon and the second applicant a national of Jordan. The couple were estranged, but had a child, who was also a national of Lebanon. The Tribunal in that case considered the first and third applicants’ claims against the situation in Lebanon as they were Lebanese nationals and considered the second applicant’s claims against the situation in Jordan as she was Jordanian. The Tribunal in that case went on to consider that whilst the second applicant was entitled to Lebanese nationality on the basis of having a child of a Lebanese husband, it accepted that she did not have a right to enter and reside in Lebanon as she had not made an application for citizenship.
Whilst the separation or potential separation of the parents from their child in MZAEN was not the result of a persecution for a Convention reason (and, therefore, not able to found a claim for the reasons explained by Mansfield J in SZRSNv Minister for Immigration and Citizenship [2013] FCA 751), her Honour noted that the test under s.36(2)(aa) is different as that section provides:
(2) A criterion for a protection visa is that the applicant for the visa is:
(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
Her Honour concluded:
50. That paragraph of the Act does not focus on the removal, as SZRSN does, but on the necessary and foreseeable consequences of the removal. Such consequences, in the present case, would include the possible consequence that the second and third applicants, being a mother and her young child, would suffer psychological harm, in their receiving countries, from being separated from each other.
51. Be that as it may. SZRSN was a decision on appeal from this court. As such, it is binding on this court, unless it is distinguishable. The second and third applicants argued that SZRSN was distinguishable from the present case because, in SZRSN, the person who was to be removed from Australia was the New Zealander father of children who would remain in Australia, whereas, in the present case, the mother and her young child would both be removed from Australia. Also, in SZRSN at [47], Mansfied J expressly relied on the context of that case, being that the removal of the New Zealander father from Australia, while his children would remain in Australia.
52. It seems to me that that is sufficient to distinguish SZRSN from the present case. In the present case, both the second and the third applicants, a mother and young child, would be removed from Australia and would possibly suffer significant harm in their respective receiving countries, being the possible psychological harm of being separated from one another.
53. By failing to consider this possibility, the Tribunal made the jurisdictional error of failing to consider an integer of the claim, albeit one that was not expressly raised.
The relevant circumstances of this case appear indistinguishable to those considered in MZAEN. In these circumstances it is appropriate that I apply the reasoning in MZAEN.
I should add that a case such as this requires careful consideration of the logic of the argument. The claims of risk of serious harm for a Convention reason have been rejected which prevents a protection visa on this basis. There is no finding that the parties do not hold sufficient subjective fears as to result in them not returning to those countries. Nor is there evidence that Australia could or would deport them to the same country. The result is that on the evidence before the Tribunal, the only inference is that they will be deported to different countries. This results in exactly the same harm considered in MZAEN.
In the circumstances, the application must be allowed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 31 October 2017
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