Avd17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 360
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AVD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 360
File number(s): MLG 379 of 2017 Judgment of: JUDGE DAVIS Date of judgment: 13 May 2022 (and reasons for judgment made public by Judge Blake pursuant to subsection 210(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) on 24 May 2022) Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – refusal to grant the applicant a Protection (Class XA) visa – decision not affected by judicial error – where the ground of review is without particulars – application dismissed Legislation: Migration Act 1958 (Cth), ss, 36, 499 Cases cited: NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 7 December 2021 Place: Melbourne Solicitor for the Applicant: PLS Lawyers Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 379 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVD17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DAVIS
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The application be dismissed.
3.The first applicant pay the costs of the first respondent fixed in the sum of $5,000.
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 DAVIS
This is an application for review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 8 February 2017. By that decision, the Tribunal affirmed a decision made by a delegate of the First Respondent (Minister) not to grant the Applicant a Protection (Class XA) (Subclass 866) visa (Visa).
BACKGROUND
The Applicant is a Malaysian citizen who arrived in Australia on 14 October 2011 as the holder of an Electronic Travel Authority visa (Applicant). That visa was cancelled on 10 November 2011.
The Applicant applied for the Visa which is the subject of this Application on 23 October 2013. She attended an interview with the Department on 23 April 2015 to give evidence in support of her application.
On 15 May 2015, a delegate of the Minister refused to grant the Visa. The delegate was not satisfied that the applicant faced real risk of significant harm or that she had a well-founded fear of persecution, as defined under subsection 36(2)(a) and 36(2)(aa) of the Migration Act.
On 10 June 2015, the Applicant applied to the Refugee Review Tribunal (as, in effect, the Tribunal then was) for review of the delegate’s decision.
The Applicant attended a hearing before the Tribunal on 21 October 2016 with the assistance of an interpreter and with her representative.
On 8 February 2017, the Tribunal affirmed the decision of the delegate not to grant the Applicant the Visa.
The contentions made by the Applicant to the Tribunal on 21 October 2016, in effect, are summarised in decision record at [18] and I extract them below:
•The applicant, who is now 28 years old, is unmarried and identifies as Muslim
•When she was 16 years old, her parents arranged her marriage to her father’s friend’s son, Shukri. She met him on the occasion of their engagement and she didn’t like him. She told her father but he insisted that she should marry him. She believes Shukri was not a god man because when he came to get engaged, he asked for money from her. He got angry, drove the car fast and abused her
•The applicant was supposed to marry her fiancé when she turned 23, so she came to Australia to have a holiday before getting married with a view to running away to avoid getting married. The Applicant came to Australia in 2011, with her mother and after two or three weeks when he mother wanted to return to Malaysia, the applicant ran away. She is not in touch with her mother and does not know where she is.
•The applicant fears that if she returns to Malaysia her father will force her to marry someone who she does not like because she is not married yet. He will want her to marry a relative because her father did this and he will want her to do the same
•Her father will be able to find he because he has lots of friends.
•The applicant would not go to the authorities in the event she was forced to marry because she would not heart to see her father apprehended or sanctioned
•The applicant is established in Australia and also supports her sister and her nephew here.
I extract below the bulk of the consideration by the Tribunal’s consideration of the Applicant’s claims as set out in its decision record:
CONSIDERATION OF CLAIMS AND EVIDENCE
5.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is -a member of the same family unit as such a person and that person holds a protection visa of the same class.
6.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
7.Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
8.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion').
…
Assessment of claims
…
24.In considering the applicant's claim that her father will force her to marry someone she does not like, possibly a relative, because she is not yet married, the tribunal accepts as plausible, given the nature of the applicant's claims, the submission of the applicant's migration agent that the applicant does not have any evidence to support her claims because she has been in Australia for so long. The tribunal notes that the applicant has been consistent in her claim that when she was 16 years old her father arranged for her to be married to the son of his friend, and that it was intended that they marry when she was 23 years old. The tribunal accepts this claim on this basis.
25.In her application, she wrote that she was threatened and humiliated when she sought to resist the engagement, and at her interview with the department, she stated that her prospective spouse pulled her hair. She told the tribunal that when her fiancé got angry he drove the car fast and abused her. On the evidence of the applicant the tribunal accepts she felt threatened and intimidated by her fiancé. However, on the evidence of the applicant at the hearing, Shukri, the man to whom she was engaged, is no longer an aspect of her claims. For this reason, the tribunal does not accept the applicant has a real chance of serious harm now or in the foreseeable future arising from her failure to marry her fiancé.· The tribunal does not accept the applicant faces a real risk of significant harm on this basis.
26.Instead, the applicant gave evidence that her father will force her to marry someone else, perhaps a relative, because she is not yet married. In considering whether the applicant faces a real chance of serious harm or a real risk of significant harm for this reason, the tribunal has taken into account the applicant's evidence in respect to her father's treatment of her when she sought to resist a marriage to Shukri. In her evidence, the applicant was vague and limited, saying only that he insisted she should marry him. While the tribunal considers it plausible the applicant may have found her father intimidating, on the vague and limited evidence before it, the tribunal does not accept she was mistreated by her father. Having regard to the non-exhaustive examples of serious harm in s.91R of the Act, and the definition of significant harm at s.36(2A) of the Act, the Tribunal finds that the father's treatment of the applicant did not constitute either serious harm or significant harm. While the tribunal considers it unlikely the applicant's father will find the applicant in Malaysia if she does not want him to, the tribunal accepts as plausible the applicant's claim that he may find her. However, having found the applicant's father's treatment of her in the past did not amount to serious or significant harm, the tribunal considers the chance or risk that in the foreseeable future the applicant will be subject to serious or significant harm at the hands of her father is remote.
…
30.At the hearing, the tribunal put to the applicant independent country information indicating that although arranged marriages have been reported in Malaysia, arranged marriages in Malaysia have declined in the past decades. Further, as put to the applicant, country information also indicates that although forced marriages do occur particularly in the form of child marriage, there are laws protecting against forced marriages. As put to applicant, reports also show that under Malaysian civil law, all marriages must be based on mutual consent and that using force or threat to compel a woman to marry against her will once she attained the age of 16 is an offence punishable by fine or imprisonment and that in Malaysia forced marriage is not practiced 'because other aspects of laws and social attitudes prevent it. Based on this information, the tribunal finds that forced marriage is rare and the laws protect against forced marriage and that the laws against forced marriage are effective.
31.The tribunal also put to the applicant independent country information from DFAT of July 2016 that Malaysia has a functional legal system and the Royal Malaysian Police is considered by credible local sources to be an effective force with reasonable capacity levels. The tribunal put to the applicant that if she had concerns about being compelled to marry against her will, she could seek protection from the Malaysian authorities. In response to the country information above, the applicant advised the tribunal that she would not seek assistance from the authorities to prevent her father from forcing her into a marriage because she would not have the heart to see her father being apprehended or sanctioned. The tribunal considers the applicant's claim that she, an adult who has demonstrated considerable experience in effectively looking after herself independently in Australia, would not take action to protect herself from harm from her father or being forced into a marriage against her will because she would not have the heart is not a plausible response from someone in need of protection. The tribunal would expect that if the applicant needed protection from her father, she would seek assistance rather than protect him from sanctions. On the basis of the independent country information, the tribunal finds that the applicant could obtain effective protection from the authorities in the event this was required for any reason. Further the tribunal considers that the applicant's implausible response detracts from her claims to be in need of protection from her father or anyone else on return to Malaysia. On this basis, the tribunal considers the chance that now or in the foreseeable future the applicant will be subject to serious harm or has a real risk of significant harm at the hands of her father is remote.
…
34.The applicant claims she does not wish to return to Malaysia because, after five years, she is established in Australia. The tribunal accepts the applicant may experience some initial difficulties adapting to Malaysia after a long period of absence. However, the tribunal notes that the applicant has a sound education, and while she provided limited information about her employment experience she indicated that she has been working and earning enough to support herself and help support her sister and nephew. The tribunal also notes that on her evidence, she has been living independently of her family for a number of years and on this basis. In these circumstances, the tribunal finds that the applicant will be able to find employment and re-establish herself on return to Malaysia. The tribunal further finds that this claim has no Convention nexus and. does not involve systematic and discriminatory conduct. The tribunal finds the applicant's fear of persecution is not well-founded. In addition, having regard to the definition of significant harm in s.36(2) of the Act, the tribunal finds that the initial difficulties the applicant may experience on return to Malaysia do not constitute significant harm as exhaustively defined.
…
36.The tribunal has had regard to all the circumstances and findings above, both individually and cumulatively, and finds that the applicant does not have a real chance of serious harm now or in the foreseeable future for any reason. The applicant's fear of persecution is not well founded.
37.Having regard to all the circumstances and findings above, both individually and cumulatively, the tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that she will suffer significant harm.
[References omitted. Errors in original.]
Accordingly, then, the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion under s 36(2)(aa). The Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection visa and gave its reasons on 8 February 2017.
The Applicant filed her application and affidavit in support in this Court on 24 February 2017. In substance, the Applicant’s affidavit exhibited the Tribunal’s decision and reasons.
At that time the Applicant was unrepresented.
On 30 August 2017, Registrar Allaway made orders which provided for the filing and service of materials for final hearing. Amongst other things, those orders provided that the applicant was to file and serve any amended application with proper particulars of the grounds of the application 28 days prior to the final hearing.
On 9 November 2021, PLS Lawyers filed a notice of Address for Service on behalf of the Applicant.
On 9 November 2021, the Applicant also filed an amended application (Amended Application). On 10 November 2021, the Applicant filed submissions and on the Minister filed submissions on 19 November 2021.
The matter came before me on 7 December 2021. Mr Bandara, solicitor, appeared for the applicant. Mr Cunynghame, solicitor, appeared for the Minister. The Second Respondent had taken no active role in the proceeding not appear.
APPLICATION
By her Amended Application, the Applicant seeks the following relief:
(a)An order that the decision of the tribunal, Immigration Assessment Authority or Minister be quashed
(b)A writ of mandamus directed to the Tribunal, Immigration Assessment Authority or Minister, requiring them to determine the applicant’s application according to law.
The Applicant sought that relief on the basis of a single ground, as follows, with errors in the original:
Administrative Appeal Tribunal erred in law and/or in fact and thereby fell into jurisdictional error when it found and/or held the evidence presented by the applicant did not satisfy the requirement of sec.36(2)(a) or (aa) of the Migration Act 1958 and the migration regulations which evidence the tribunal failed to and/or adequately and/or properly consider.
[Errors in original.]
In the Amended Application, that ground was devoid of particulars. None were subsequently filed.
WRITTEN SUBMISSIONS
The Applicant made submissions including the following:
8Applicant's contention is that, the Administrative Appeal Tribunal failed to consider substantial, clearly articulated claim made by the applicant.
9Ministerial Direction No 56, made pursuant to s 499 of the Migration Act, obliges the Tribunal to take into account certain departmental guidelines in PAM3, as well as country information prepared by DFAT for the purpose.
10Ministerial Direction No 56 provides relevantly "Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country."
11Failure to take into account a report falling within Ministerial Direction No 56 would breach s 499 of the Migration Act and would constitute a jurisdictional error for failing to conduct the review mandated by statute.
12The Applicant's contention is that the Administrative Appeal Tribunal had evidence that forced marriages do occur in Malaysia but the Tribunal opted to disregard it. It is important to understand the practical aspect of the Applicant's conservative family background, her childhood upbringing and the prevailing traditions and cultural restrictions in the Muslim ethnic community that has towards women in general. These reasons have a major role to play in understanding the Applicant's point of view and the genuine fear she possesses of being subject to serious harm or has a risk of being exposed to significant harm at the hands of her father.
13The Tribunal takes in to account the independent country information reports namely Asia Research Institute, National Institute of Singapore, "Changing marriage Patterns in Asia", O1 January 2010 and states although arranged marriages have been reported in Malaysia there has been a decline of it in the past decades. The Applicant contends to look at her situation subjectively as she comes from a very strict traditional conservative Muslim family background where the norm is to obey the parents irrespective of how you feel personally. If she objects to her father's arranged marriage proposal she will not only be looked down upon by the family but will surely be subjected to significant risk of physical and emotional harm forcing her to accept the marriage proposal in order to be accepted by her family and the society at large.
14It is a real problem that prevails in traditional Muslim ethic families and moreover it is important to take into account most of the cases are not recorded or does not come to light because these women/ girls who are younger than 16 years of age are oppressed and is afraid to voice the injustice that is caused to them by their own families. This is because in most of the cases the victim feels afraid to voice out against your own family members because she will have to face the repercussions thereafter for disobeying the family. Moreover, in most cases the victim does not see herself as victimised because it has been imbedded in their minds since childhood that this is the norm and the correct way of life and having witnessed their close family members and siblings undergoing the same process makes the victim feel how does it differ to me and how am I to justify feeling deprived of my freedom of choosing my life partner? Therefore, we need to look at the Applicant's earnest and desperate plea not to return to her family and to all the hardships which has been mentioned above in a more compassionate level and in a matter of fact manner which is directly applicable to her in her personal circumstances.
15It is true that in the Tribunal's findings it states the Applicant can always seek the protection of the Malaysian Authorities in the event of oppressive conduct to compel her to enter in to a forceful marriage arrangements put forward by the father. It is a real issue to look at it from the Applicant's point of view as she needs to protect her interest and at the same time is trying to protect her father from being apprehended or sanctioned in the event she is compelled to go to the Authorities.
16Therefore, the Applicant is really trying to avoid harm for herself as well as for her father by seeking for a protection visa.
17The Tribunal's finding that the Applicants will not face real chance of serious harm upon return to their home country was substantially based on the Tribunal's satisfaction that the forced marriages are not practiced in Malaysia was based on some reports and DFAT July 2016 report available to it.
18It follows that the Tribunal's decision that the applicants did not face a real chance of serious harm and will not face a real risk of significant harm, based on that irrational finding, was affected by jurisdictional error.
19The Applicant seeks for the Tribunal's decision dated 08/02/2017 to be set aside and grant the reliefs sought out by the Applicant as the Tribunal fell in to jurisdictional error when it found that the evidence presented did not satisfy the requirement of sec36(2) (a) or (aa) of the Migration Act 1958.
[Errors in original.]
Amongst other things, the Minister submitted as follows:
18.The Tribunal correctly set out the relevant law with respect to the Refugee criterion, and the complementary protection criterion (CB 129, [5]-[8]). The Tribunal assessed the applicant’s claims with reference to the relevant statutory criteria but did not accept that the applicant faced a real chance of serious harm, or a real risk of significant harm, arising from her failure to marry the son of her father’s friend (CB, [25]). The Tribunal found that the treatment of the applicant by her father did not constitute serious harm or significant harm, the risk of her being subjected to harm by him in the foreseeable future was remote (CB, [26]) and found that while she may experience some initial difficulties adapting to life in Malaysia, this aspect of her claims had no Convention nexus and her fear of persecution was not well-founded, and any initial difficulties would not constitute significant harm (CB 135, [34]).
19The Tribunal found that the applicant did not have a well-founded fear of persecution as defined in s 5J and was not satisfied that the applicant was a person in respect to whom Australia had protection obligations under s 36(2)(a). For the same reasons, the Tribunal did not accept that the applicant faced a real risk of significant harm (CB 136, [36]-[37]).
20Insofar as the applicant’s written submissions argue with the choice and weight given by the Tribunal to particular country information, it is well settled that the choice and assessment of country information is a factual matter for the Tribunal.
21The Tribunal’s findings were clearly open to it on the evidence before it and for the reasons it gave. This ground appears to be a complaint that the Tribunal should have come to a different conclusion on the material before it. As such, it impermissibly cavils with the merits of the Tribunal’s decision. This ground fails to reveal any error in the Tribunal’s decision and should be dismissed. As the sole ground has not been made out the application should be dismissed with costs.
[References omitted.]
ORAL SUBMISSIONS
Applicant’s oral submissions
Amongst other things, Mr Bandara made oral submissions on behalf of the Applicant as follows:
(a)By [24] of its reasons, the Tribunal accepted the Applicant’s claim that, when she was 16 years old, her father arranged for her to marry the son of his friend – with such marriage to take place when she was 23 years old.
(b)By [25] of its reasons, the Tribunal accepted the Applicant’s evidence that she felt threatened and intimidated by her fiancé.
(c)The Tribunal’s reasons at [18] demonstrate that a there is a continuous threat to the Applicant’s life if she were to return to Malaysia because she fears that if she returns her father would force her to marry someone who she does not like. This is so because she is not married yet. Further, he would want her to marry a relative.
(d)Accordingly, there was sufficient evidence to satisfy s 36 and grant the relief sought.
(e)The Tribunal impermissibly had regard to an irrelevant consideration by determining that:
The applicant was vague and evasive about her family disposition, and her contact with her family members. She claimed, for example, not to know when she last had contact with her mother, or where her mother was.
(f)Despite this, the Applicant accepted that she had not pleaded a ground complaining about this. Relevantly, Mr Bandara acknowledged that:
I concede, your Honour, that is not part of my ground of appeal, but indirectly, it’s relevant to the point.
(g)The Tribunal did not have adequate regard to country information to the effect that arranged marriages still happen in Malaysia.
Minister’s oral submissions
Mr Cunynghame made oral submissions in reply including as set out below.
In response to the oral submission made on behalf of the Applicant with respect to [24] of the Tribunal’s reasons, Mr Cunynghame submitted as follows:
the claims considered there related to a historical claim of the applicant and whilst the tribunal accepted those claims they were at a factual level in relation to historical matters. What I would add is that the applicant in the hearing before the tribunal essentially abandoned the need to… arranged marriage with that man - - -
As to the applicants oral submissions concerning [25] of the Tribunal’s reasons, Mr Cunynghame submitted as follows:
About halfway down that paragraph, the tribunal comments that that – on the evidence of the applicant at the hearing Shukri, the man to whom she was engaged is no longer an aspect of her claims.
…
Yes. So it wasn’t a claim that the applicant relied on for the visa - - -
As to the applicants oral submissions concerning [18] of the Tribunal’s reasons, Mr Cunynghame submitted as follows:
And the tribunal took that into account in finding or otherwise not being satisfied that the applicant had a real chance of serious harm. Essentially, and just to take that further, the applicant’s claims evolved at the tribunal hearing essentially to the extent that she feared that her father would arrange a marriage with another person if she were to return to Malaysia which could be a family member, but it wasn’t specified who in particular that her father would arrange the marriage and those claims are summarised at paragraph 18 of the tribunal’s decision …
Further, Mr Cunynghame submitted that
In any event, in my submission, the tribunal correctly set out the applicant’s claims at 17 to 19 of its decision, and then went on to consider each of those claims in its decision record, and that no claim was overlooked.
As to the Tribunal’s consideration of country information, Mr Cunynghame made oral submissions during the course of the following exchange with the Court:
MR CUNYNGHAME: …or the additional aspect that the Tribunal rejected the applicant’s claims beyond credibility was also country information before it, which I appreciate my learned colleague has taken you to, which provided, in broad terms, that the applicant could essentially access effective State protection, should the applicant’s father find her on return. And in that regard, I would just pause to note that the Tribunal considered that was essentially unlikely, that if she were to return, that the applicant’s father would find her. That in any event, that even if it did occur, she would be able to access the assistance of the Malaysian authorities.
HIS HONOUR: And, Mr Cunynghame, your point will be that despite the fact that the written submissions say that the DFAT information wasn’t considered contrary to section 499. There was DFAT information considered.
MR CUNYNGHAME: Well – and that it took into account information in any event, and as we put in our written submissions, it’s trite – in my respectful submission – that choice of country information and the weight to be prescribed to it is a matter for the Tribunal, as part of the .....
HIS HONOUR: Yes, except that that section – you want to watch – not run into ground section 499.
MR CUNYNGHAME: I accept that. I understand.
HIS HONOUR: And what’s put against you is that there was country information that had to be considered because there was a ministerial direction to that effect.
MR CUNYNGHAME: Yes. Where – and – yes. And then I take your Honour’s point that it was considered by the Tribunal.
HIS HONOUR: Isn’t that your real answer to it?
MR CUNYNGHAME: That – that’s the first argument. Then it’s plain from the Tribunal’s decision record that it did take that information into account.
HIS HONOUR: So your point is that once it has considered it, the weight that it puts on it is a matter for it?
MR CUNYNGHAME: Yes. Yes. Sorry. Yes, your Honour.
CONSIDERATION
On its face, the Applicant’s single ground is difficult to follow.
Again, that ground alleges that the Tribunal erred in law and/or fact and thereby fell into jurisdictional error when it found that the evidence presented by her did not satisfy the requirement of ss 36(2)(a) or (aa) of the Migration Act and the regulations made thereunder. The ground goes on to complain that the Tribunal failed adequately to consider that evidence
On one view, the ground should be dismissed on the basis that, in the absence of particulars, it is vague and unclear.
However, I dismiss the Application for the reasons set out below.
The Applicant argued her ground for relief, in large part, on the basis that the Tribunal failed to consider that her continuing fear of forced marriage, if she were returned to Malaysia, was supported by country information which the Tribunal was obliged to consider under ministerial direction 56. She also specifically argued, in effect, that the Tribunal did not consider or place adequate weight on her fear that her father would find her and force her to marry someone against her will. She likewise argued that the Tribunal did not consider or place adequate weight on her contention that she would not seek protection from the Malaysian authorities against her father because of the adverse consequences to her which would institute if she were to do so.
Ministerial Direction 56 was made pursuant to s 499 of the Migration Act and provides that:
Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
It will be recalled that in oral submissions Mr Bandara put that although the Applicant no longer feared the arranged marriage to Shurkri, she continued to fear significant harm the basis for which should have been accepted by the Tribunal on the basis that the country information to the effect that arranged marriages continue to occur in Malaysia.
Relevantly, the Minister’s written submissions referred to the statement of Gray, Tamberlin and Lander JJ, in NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (NAHI), at [10] – [13]:
[10] In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S 157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
Reliance on ‘country information’
[11] The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
[12] The appellants’ submissions asserted that the Tribunal rejected all of the appellants’ claims on the basis of ‘country information’. The Tribunal’s reasons for decision do not substantiate this assertion. It is plain that the Tribunal relied to a substantial extent on the inherent improbability of some aspects of the first appellant’s story, inconsistencies between different parts of his story, and the fact of his frequent returns to Sri Lanka and the length of his sojourns there, to form its views about his credibility. In turn, it relied on its assessment of the first appellant’s credibility in determining whether it accepted some of the ‘country information’. Its treatment of the DFAT advice about Tamil males from Batticaloa, to which we have referred in [4], is an example. The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin.
[13] In performing its function, the Tribunal was obliged to make an assessment of the circumstances in Sri Lanka in the reasonably foreseeable future. See Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) (1993) 47 FCR 1 at 66. It had to assess whether there was a real chance of persecution of the appellants for a Convention reason if they were to return to Sri Lanka. The appellants complained in their written submissions that the Tribunal engaged in this exercise at all. In his oral submissions, the first appellant said that it was a legal error to base a conclusion on a hypothesis about what might happen in the future. These submissions cannot be accepted. The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a ‘mere guess’ and by relying on ‘country information’ that did not present a true picture. It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
I accept Mr Cunynghame’s submission, that as long as the Tribunal considers the country information, the weight accorded that information is a matter for the Tribunal.
I consider that, by its reasons, the Tribunal took account of country information that deals with the continuing risk of forced marriages: see, for example [30] and [31]. It did so in the context of the Applicant’s continuing fear of being subject to forced marriage should her father find in the event that she is returned to Malaysia. The weight to be accorded that information was a matter for the Tribunal.
Mr Cunnynghame made the following submission in relation to the Tribunal’s consideration of whether the prospect of the Applicant’s father finding her provided substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk she would suffer significant harm within the meaning of s 36(2)(aa):
MR CUNYNGHAME: It perhaps is – whether or not the applicant’s father would find the applicant is perhaps a bit of a distraction, because the – I suppose the Tribunal’s findings, in that regard, were more by way of comments. What is relevant is that the Tribunal did in fact consider whether or not the applicant would face either a real chance of serious harm for the purpose of section 36(2A) of the Act, or a real risk of significant harm for the purpose of section 36(2)(aa), if the applicant’s father were to find her on return.
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MR CUNYNGHAME: Because – and the reason I say that it’s a distraction – because even though ..... had concerns – as I earlier submitted – as to whether or not he would find her, the Tribunal goes on to accept as plausible that he may find her.
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MR CUNYNGHAME: So the claim is therefore live before the Tribunal. And for the reasons that it has given above, and that essentially, as it goes on to say, that the treatment of her in the past did not amount to serious or significant harm, that the Tribunal considers the chance or risk in the foreseeable future that she would be subject to serious or significant harm is remote.
I accept this submission. I also accept that Mr Cunynghame’s submission that the Tribunal considered and dismissed the Applicant’s claim that, should she be sent back to Malaysia, “[s]he would not take action to protect herself from harm from her father, or being forced into a marriage against her will, because she would not have the heart”: [31]. In essence, this, together with the other findings in [31] with respect to the steps which the applicant could and would take to protect herself from forced marriage in Malaysia were determinations of credit or attributions of weight. Either way, they were matters for the Tribunal.
I dismiss the Application.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Davis. Associate:
Dated: 13 May 2022
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