BVQ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 780
Federal Circuit and Family Court of Australia
(DIVISION 2)
BVQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 780
File number(s): MLG of 861 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 21 September 2022 Catchwords: MIGRATION – protection visa application – application for judicial review –whether the Tribunal considered all evidence concerning the second applicants claims of religious discrimination – whether the Tribunal denied the second applicant procedural fairness by not allowing her to complete her evidence at the hearing – jurisdictional error established – application for review granted Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36(2), 36(2A), 476 Cases cited: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 8 August 2022 Date of last submissions: 16 August 2022 Place: Hobart For the First Applicant: In person Counsel for the First Respondent: Ms Hodkinson Solicitor for the First Respondent: Sparke Helmore ORDERS
MLG of 861 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BVQ17
First Applicant
BVR17
Second Applicant
BVS17 (and another 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 TAGLIERI
DATE OF ORDER:
21 september 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 30 March 2017.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review according to law.
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 Taglieri
On the 28 April 2017, the Applicants filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”) dated 30 March 2017. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth)(“the Act”).
BACKGROUND
The Applicants are non-citizens who applied for Protection visas on 8 December 2015, which were refused by a delegate of the First Respondent on 23 March 2016. The First and Second Applicants are married adults. The Third and Fourth Applicants are the children of the Second Applicant, and the First and Second Applicants have a child who was born in Australia.[1]
[1] Tribunal’s reasons for decision at [28].
The Tribunal conducted a hearing on 24 March 2017 with the assistance of a Malay interpreter. The First and Second Applicants gave evidence.
On 30 March 2017, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Protection visas.
The Application to review the Tribunal’s decision came before me on 8 August 2022 for hearing. The First Applicant represented himself and the other Applicants, and the First Respondent was legally represented.
BASIS OF tRIBUNAL DECISION
At [46] of the written reasons for decision, the Tribunal concluded that none of the Applicants had a well-founded fear of persecution on the basis of their political opinions and association. It therefore rejected claims of protection based on s 36(2)(a), s 5H and 5J of the Act, namely that they were political refugees.
At [47] of its written reasons, the Tribunal rejected the claims for protection based on complementary protections pursuant to s 36(2)(aa) of the Act, finding that there:
…are no substantial grounds for believing that, as a necessary and foreseeable consequence of any of the applicants being returned to Malaysia, there is a real risk any of the applicant will suffer significant harm from the Malaysian authorities on this basis.
[emphasis added]
The above conclusions were based on findings elsewhere in the reasons for decision. Namely, that the Tribunal accepted that the First Applicant took part in a political rally in Malaysia in 2013 (“the 2013 rally”) and that he attended local meetings of the Pan-Malaysian Islamic Party.[2] However, it did not accept that the police had subsequently attempted to locate him at his home or his mother’s home in connection with his participation in the 2013 rally.[3] Further, that based on country information for Malaysia produced by the Department of Foreign Affairs and Trade, the Tribunal did not accept that the Malaysian authorities are pursuing participants in the 2013 rally or other such activities or that those who participated peacefully face sanction.[4]
[2] Tribunal’s reasons for decision at [32], [33] and [38].
[3] Tribunal’s reasons for decision at [34] and [37].
[4] Tribunal’s reasons for decision at [44] and [45].
The Tribunal addressed the claims and evidence of the Second Applicant under three headings: ‘Second named applicant’s bank debt’, ‘Second named applicant’s mental health’ and ‘other’.[5] It discussed the evidence and made findings as set out in the written reasons for decision at [48] to [59]. In summary, the findings were:
(a)That the Second Applicant is from a poor indigenous background, that she took out a loan which she can now not repay, and that she may be declared bankrupt upon her return to Malaysia;[6]
(b)That these circumstances referred to at [9a], do not arise from the reasons set out in s 5J(1) of the Act and does not constitute significant harm as defined in s 36(2A) of the Act;[7] and
(c)That the Second Applicant had mental health difficulties and possibility of suicide, but the circumstances did not arise for one or more of the five reasons set out in s 5J(1) and did not satisfy the meaning of “significant harm” exhaustively defined by s 36(2A) of the Act, which contemplates harm inflicted on applicant by others, not by themselves.[8]
[5] Tribunal’s reasons for decision at pages 12 to 14.
[6] Tribunal’s reasons for decision at [50].
[7] Tribunal’s reasons for decision at [51] and [53].
[8] Tribunal’s reasons for decision at [57].
The Tribunal also found that while it accepted that the Second Applicant’s religion has been undermined, this circumstance does not satisfy either s5J(1) or s32(2A) of the Act.[9]
[9] Tribunal’s reasons for decision at [59].
The ultimate conclusion of the Tribunal was that none of the Applicants face a real chance of serious harm as a result of the First Applicant’s political opinions and activities, or that there is a real risk of significant harm as a necessary and foreseeable consequence of their removal to Malaysia.[10]
[10] Tribunal’s reasons for decision at [46] and [47].
Court Review
A review to this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought, one of the Applicants need to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
Grounds of review
The application for review filed on 28 April 2017 sets out 3 grounds for review, alleging that:
(1)The Tribunal did not properly consider all evidence before it about religious discrimination faced by the Second Applicant in Malaysia as a member of an indigenous tribe;
(2)The Tribunal “misinterpreted the Second Applicant’s meaning” at the hearing as she was emotional; and
(3)The Tribunal misinterpreted the Second Applicant in respect of her physical and emotional health.
It is self-evident from the grounds and the First Applicant’s submissions at the hearing before me, that no error is relied upon because of the findings and conclusion that the Applicants did not satisfy the requirements for grant of Protection visas on account of being refugees because of a well-founded fear of persecution based on political opinion.[11] Similarly, no error is asserted about a rejection of the entitlement to complementary protection due to serious harm from their political opinions.[12]
[11] Section 36(2)(a), s 5H and s 5J of the Act.
[12] Section 36(2)(aa) and s 36(2A) of the Act.
Before this Court the Applicants collectively rely on purported jurisdictional error by the Tribunal concerning the Second Applicant’s claims for protection based on religious discrimination.
REVIEW HEARING
The Applicants collectively relied on the Application for Review and agreed that the Court Book filed by the First Respondent should be received in evidence and considered.[13]
[13] Exhibit R-1.
The hearing was facilitated with assistance from a Malay interpreter at the prior request of the Applicants.
Applicants’ submissions
In oral submissions the First Applicant stated that the Tribunal had not considered additional information furnished about the “real reason” they had come to Australia and that the member had not properly considered the claims by the Second Applicant.
Referring to the grounds of review, the following submissions were made by the Applicants about the Second Applicant’s claims before the Tribunal.
The Second Applicant was a native indigenous person and had needed permission to marry her ex-husband, who was a Muslim. Because she had converted to Islam, a family member had become disappointed and angry, which led soon after to her marriage failing and the ex-husband not providing for her and their children. Further, the ex-husband had used her name to borrow about 300,000 Ringgit and this had made her very stressed and tense and the only way to avoid this was to come to Australia.
It was alleged that the Tribunal had failed to consider all the circumstances referred to at [20] of these reasons, including that the Second Applicant had been rejected by her family on account of her previous marriage, conversion to Islam and lack of support from the ex-husband, meaning the only option was to leave.
Grounds 2 and 3 were said to relate to the seriousness of the Second Applicant’s situation referred to in [20] and [21] above and the member had misunderstood the claims and evidence about the Second Applicant’s circumstances.
Regarding the submissions at [22], I asked directly that the Applicants identify what evidence was before the Tribunal about the Second Applicant’s circumstances which had not been misconstrued and not considered. I was told that, although the member acknowledged the Second Applicant was distressed and she allowed her to take a break as she was breastfeeding,[14] she was not afforded opportunity to resume her evidence.
[14] Tribunal’s reasons for decision at [48].
At this time, the Second Applicant appeared to want to speak, but was upset. Noting the challenges of self-represented persons, I made an order for the Applicants to identify by email or in writing what evidence relating to the Second Applicant’s claims were said to have been overlooked or not allowed to be given.
On 10 August 2022, the Applicants provided (copied to the First Respondent’s lawyer) a three paragraph submission and an Affidavit affirmed on 10 August 2022 with annexures, which has been received in evidence and marked as Exhibit A-1. The annexures to this affidavit are also documents contained in the Court Book and are referred to in the decision of the Tribunal at [20]. The annexed documents are:
·Undated photos of the Second Applicant and family members at her timber dwelling in Malaysia;[15]
·A letter dated 14 March 2017 from Dr Wale outlining the referral of the Second Applicant and her newborn child, Dr Wale’s diagnoses of the Second Applicant, and Dr Wale’s medical opinion that the Second Applicant requires financial support to avoid deterioration of physical and mental health;[16]
·An untranslated letter dated 15 June 2016 from the bank which the Second Applicant owes indicating the outstanding loan amount and the amount which she is in arrears;[17] and
·A letter dated 2 August 2016 from the solicitors acting for the bank owed by the Second Respondent attaching a judgment from a local court against the Second Applicant.[18]
[15] Court Book at pages 166 to 178.
[16] Court Book at page 154.
[17] Court Book at page 161.
[18] Court Book at pages 162 to 165.
The affidavit evidence in part repeats evidence before the Tribunal and in other respects expands on evidence about so called religious discrimination or rejection by the Second Respondent’s family and financial/economic hardship in the event of a return to Malaysia.
First Respondent’s submissions
The First Respondent relied on written submissions filed on 25 July 2022 and these were also orally addressed during the Court’s hearing.
As to Ground 1, it is said that a claim of religious discrimination based on the Second Applicant being a member of an indigenous tribe did not arise in any material before the Tribunal. The claims by the Second Applicant at the hearing were said to be different to those now advanced in the Court.
It was submitted that the Second Applicant’s claim before the Tribunal was based on her association with the First Applicant and his claim relating to attendance at the 2013 rally.
The First Respondent submits that there is no evidence that the Second Applicant made any claim for protection based on religion and membership of an indigenous tribe, either in documents or submissions at the hearing before the Tribunal.
During these submissions, I asked the Applicants whether they agreed with the First Respondent’s contention referred to at [28]. In response, through the interpreter, the First Applicant replied that they had not used the claim about the Second Applicant originally, as the application had been prepared by a friend. He also conceded that the claim was not specified in the application to the Tribunal but said it was made at the hearing.
In response, the First Respondent submitted that there was no transcript of the Tribunal hearing before the Court and, in those circumstances, there was nothing before the Court to indicate that the claim now advanced relating to religion was made.
The First Respondent submitted there was no obligation on the Tribunal to consider a claim not made and Ground 1 should be dismissed.
Concerning Ground 2, the First Respondent submitted that there is no evidence supporting the notion that the Tribunal misunderstood the Second Applicant’s claims of harm related to financial difficulty or potential bankruptcy. The Tribunal took evidence from the Second Applicant and accurately noted what the evidence was.
Regarding Ground 3, the First Respondent submitted that it was clear that the Tribunal accepted that the Second Applicant was receiving medical treatment for her post-pregnancy health, but concluded that this did not give rise to persecution within the meaning of section 5J of the Act.
It was submitted that the Tribunal’s reasons for decision reflect proper consideration of the claim about physical and mental health, but disagreed that it satisfied the requirements for eligibility for a Protection visa. The Tribunal’s findings were reasonably open on the evidence and no error is demonstrated.
I asked Counsel for the First Respondent if the Tribunal had collectively considered each of the claims for protection arising in relation to the Second Applicant.
In response to the enquiry at [37], the Court was referred to the Tribunal’s reasons for decision at [61]. It was submitted that it could be inferred from these reasons that it was considered collectively and holistically.
By email of 16 August 2022, the First Respondent indicated that there was no objection to the Court having regard to the affidavit provided by the Applicants on 10 August. 2022.[19] The First Respondent submits that on the basis that the Second Applicant claims she faced harm from family members on account of her religion as a Muslim convert, it was a claim that did not arise on the material before the Tribunal and did not need to be considered.
[19] Exhibit A-1
A similar submission to that referred to at [32] was made about the absence of a transcript, and the First Respondent relies on NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60]. In NABE, the Justices of the Full Court of the Federal Court stated: at [60]
…[The Tribunal] is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
EVALUATION
The documentary evidence before the Tribunal that is relevant to the grounds of review are those contained in the Court Book at pages 153 to 179. They are in part the same materials annexed to the affidavit relied upon and received in evidence as Exhibit A-1 and listed at [25] of these reasons.
Assisted by the submissions referred to at [18] to [22] above, I interpret all three grounds of review to be directed to a central contention that the Tribunal did not adequately consider the documents described at [25] above and incomplete evidence by or on behalf of the Second Applicant to the Tribunal when determining her claims for protection. That is, the Tribunal did not consider or misunderstood claims and evidence about both being a Muslin convert and being a person from a native indigenous tribe of Malaysia.
The First Respondent’s submissions effectively amount to a contention that evidence and submissions before the Tribunal simply did not raise a claim of persecution based on religion or membership of an indigenous tribe, so, no jurisdictional error is demonstrated.
As the First Respondent contends, I do not have the benefit of considering a transcript of the proceedings in the Tribunal. The Applicants had the opportunity to rely on the transcript, but as they are self-represented they may not have appreciated they could obtain the transcript and file it with the Court for the purpose of the review. No criticism or adverse inference should arise from the Applicants’ failure to file the transcript.
Nonetheless, without the transcript, I am left to discern what was before the Tribunal, what it considered, and should have considered, from the contents of the Court Book and the Tribunal’s reasons for decision.
In assessing the submission that the Second Applicant did not complete her evidence, it is relevant that the Tribunal’s Hearing Record at page 152 of the Court Book shows that only the First Applicant was affirmed to give evidence. Further, the reasons for decision convey that the evidence concerning the Second Applicant’s claims was given by the First Applicant. For example, at [54]:
…The applicant supported his wife’s claim…
And at [59] of the reasons:
The applicant stated that when the second named applicant converted to Islam… the applicant told the tribunal that he brought the second named applicant to Australia…
While the Tribunal refers to the Second Applicant being clear and able to discuss and recall details relevant to her claims at [48] of it reasons for decision, the text of the reasons convey that the statement relates to what the Second Applicant said in participating in the hearing at the commencement of the hearing when there was discussion of the bank debt.
For the reasons at [47] above, I consider and find that the Second Applicant did not participate in the hearing at the time evidence was taken about her mental health and conversion to Islam, as the reasons demonstrate this evidence was given by the First Applicant.
In my view, the contents of the Court Book and the reasons for decision corroborate the claims that the Second Applicant did not complete the evidence she wished to give to the Tribunal and that her claims and evidence about those in documents before the Tribunal were misinterpreted.
The documents before the Tribunal and referred to at [25] of these reasons together with evidence referred to at [28], [49], [54] and [59] of the Tribunal reasons, in my view raise indirectly but clearly a claim of protection by the Second Applicant connected to:
(a)Being an indigenous Malay; and
(b)Her conversion to Islam.
For the reasons at [50] and [51], I reject the First Respondent’s contention that the material before the Tribunal did not give rise to a claim based on a characteristic of religion or being from a native indigenous tribe.
As to the documentary and oral evidence about the Second Applicant referred to at [54] to [59] of its reasons, the Tribunal does not articulate or identify to which attribute(s) in section 5J(1)(a) of the Act it is potentially relevant.
Instead, the Tribunal has confined its assessment of the Second Applicant’s claims and evidence to:
·The issue of her entitlement to protection arising from the First Applicant’s claims based on being a political refugee; or, alternatively
·Whether the findings about financial hardship/bankruptcy, mental health and her former husband’s failure to provide religious guidance, satisfied the requirements of complementary protection under s 36(2)(aa) and s 36(2A) of the Act.
Further, the findings about the Second Applicant’s mental health at [57] of its reasons for decision, state:
… However, the requirements of .5J of the Act are not directed at such concerns in the circumstances of the second named applicant…
This statement in my view confuses or conflates the requirements in s 5J(4)(a) and s 5J(4)(b) with what constitutes serious harm within the meaning of s 5J(5). The member has not identified the claimed basis of persecution in s 5J(1)(a) of the Act, considered that basis in respect of s 5J(4)(a) and s 5J(4)(b), and then determined if the nature of the harm is serious harm because of that basis of claimed persecution.
In my view, all the grounds of review as explained by the oral submissions before me, rely on the Second Applicant’s evidence about financial hardship/bankruptcy and mental health effects demonstrating the nature and extent of harm that she feared would result in Malaysia because of her indigenous characteristic and conversion to Islam.
I have found that the Second Applicant did not have opportunity to give all the evidence she wished to give to the Tribunal.
The First Respondent referred me to the judgment in NABE at [60], but in my view the reasons for decision at [63] are more to the point. The court stated:
63. It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. [emphasis added] Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’ [original emphasis]
There was sufficient evidence concerning the Second Applicant’s circumstances and claims connected to conversion to Islam when she originated from an indigenous tribe to properly raise for consideration and decision, whether she satisfied the requirements for a Protection visa on that basis pursuant to s 36(2)(a) or s 36(2)(aa) of the Act.
Accordingly, I am satisfied that the Tribunal misconstrued or failed in its duty to consider claims for protection indirectly but clearly arising about the Second Applicant and thereby fell into jurisdictional error as explained in the emphasised passage of the decision in NABE.
To the extent that I am satisfied the Tribunal misunderstood the basis of the Second Applicant’s claims that arose in part because she was not able to complete her evidence. Although the Applicants did not expressly advance a ground of failure to afford procedural fairness, I consider it to implicitly arise as part of Ground 1.
Materiality?
I should only allow the application for review if the Tribunal’s failings referred to at [61] and [62] above are capable of materially affecting the ultimate conclusion of the Tribunal. The legal principles concerning materiality are well settled and do not need to be repeated.[20]
[20] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.
The Applicants had placed some evidence before the Tribunal about what the Second Applicant’s religious conversion and indigenous background meant should she return to Malaysia.[21]
[21] Referred to at [50] of these reasons.
Now, in the affidavit which is exhibit A-1, additional evidence is identified about marginalisation of native persons, rejection and threats by family because of conversion to Islam. There is also some additional detail about how employers and others in Malaysia would treat the Second Applicant as a member of an indigenous native group.
Collectively, the evidence referred to at [64] and [65] above and claims arising from it were simply not considered for the purpose of deciding whether the Second Applicant satisfied the requirements for protection.
Her religious conversion and treatment of her by her indigenous family may satisfy the requirements of s 36(2)(a), s 5J(1) and s 5J(4). Assessment is also required of whether the harmful effects based on this satisfy the non-exhaustive meaning of “serious harm” in section 5J(5) of the Act providing she is not disqualified by s 5J(3).
Further, the treatment of her by others as an indigenous person in respect of the debt and bankruptcy might satisfy the requirements of s 36(2)(a) and s 5J of the Act.
Finally, an assessment is required of whether the Second Applicant satisfies the requirements of s 36(2)(aa) and s 36(2A) of the Act for complementary protection due to the collective mental health and suicide risk resulting from economic hardship imposed by others and/or alienation from her family and native social group.
Noting the foregoing reasons, I consider a reasonable and objective decision maker might have decided differently once it considered all the claims of persecution and complementary protection which arose on behalf of the Second Applicant. In this context, although the Tribunal referred to the medical report by Dr Wale,[22] it incorrectly stated that Dr Wale “does not mention mental health concerns”. The report in fact does mention “mental health” which reasonably can be interpreted in the context of the earlier reference to referral from Refugee Health and Wellbeing Service for complex medical and social issues.
[22] Tribunal’s reasons for decision at [56].
The application for review is allowed on the basis that Ground 1 is made out. Namely, the Tribunal failed to consider relevant claims of persecution raised in respect of the Second Applicant and failed to afford procedural fairness to the Second Applicant. The relief sought is granted and the matter remitted for redetermination by the Tribunal.
There will be no order for costs as sought by the First Respondent as the Application has been allowed.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 21 September 2022
SCHEDULE OF PARTIES
MLG of 861 of 2017 Applicants
Fourth Applicant:
BVT17
0
3
0