BZAHG v Minister for Immigration

[2014] FCCA 2995

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAHG & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2995

Catchwords:
MIGRATION – Review of decision of RRT – whether tribunal failed to take into account relevant matters – whether jurisdictional error – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36(2)(a)

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

First Applicant: BZAHG

Second Applicant: BZAHH

Third Applicant: BZAHI

Fourth Applicant: BZAHJ

Fifth Applicant: BZAHK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 714 of 2014

Judgment of: Judge Jarrett

Hearing date: 24 November 2014

Date of Last Submission: 24 November 2014

Delivered at: Brisbane

Delivered on: 26 November 2014

REPRESENTATION

The First, Second and Third Applicants appeared by their litigation guardian, the Fourth Applicant

No appearance for the Fifth Applicant.

Counsel for the First Respondent: Mr Richardson

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance.

ORDERS

1. The application filed on 8 August, 2014 be dismissed.

2. The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 714 of 2014

BZAHG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of a refugee review tribunal made on 7 July, 2014 which affirmed a decision of a delegate of the first respondent to refuse to grant the applicants Protection (Class XA) visas.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

3. The first, second and third applicants are minors.  They participate in these proceedings by their litigation guardian and father, the fourth respondent.  The fifth respondent is their mother. 

4. The first, second and third applicants are the primary visa applicants.  The fourth and fifth applicants make no independent claims for protection, although they seek Protection visas on that basis that they are members of the same family unit as their children, the first, second and third applicants.

5. Despite directions to do so, the applicants have not filed any written submissions in support of their application.  However, both the applicants and I have the benefit of comprehensive written submissions filed on behalf of the first respondent.  The background to the application is not in dispute and is accurately set out in the first respondent’s written submissions, from which I have drawn.

Background

1. The fourth applicant and the fifth applicant came to Australia in 2007 on Student visas.

2. The first, second and third applicants were all born in Australia, are each female and are about 6, 4 and 2 respectively.

3. All of the applicants are Muslim and ethnic Indonesian.  The families of both the fourth applicant and the fifth applicant are strict Muslims of Yemeni background.

4. During a recent trip to Indonesia, the families of the fourth applicant and the fifth applicant threatened to circumcise the first applicant. The fourth applicant and the fifth applicant opposed this and as a result there was tension with their families.

5. On 20 March, 2013 the applicants, claiming to be citizens of Indonesia, applied to the Department of Immigration and Citizenship for the visas.  The applicants’ visa claims arise from the fourth and fifth applicants, as parents of these three young girls, not believing in female circumcision.  They do not want their daughters circumcised. They claimed that, as Muslims of Yemeni background, they “will not be able to avoid their daughters’ circumcision in Indonesia.”

6. On 1 October, 2013 the fourth applicant and the fifth applicant appeared before a delegate of the first respondent for an interview in respect of the application.  However, on 14 November, 2013 the delegate refused the application.

7. On 19 December, 2013 the family applied to a refugee review tribunal for a review of the delegate’s decision.  A registered migration agent represented the family during the tribunal’s review.  

8. On 12 March, 2014 the tribunal advised the family’s migration agent that it was unable to make a favourable decision on the material before it.  It invited the family to give evidence and present arguments relating to issues arising in their case.

9. On 16 May, 2014 the family’s migration agent accepted the tribunal’s hearing invitation and advised that a migration agent would attend the hearing, as would the fourth and fifth applicants.  However, whilst both the fourth and fifth applicants attended the hearing and gave oral evidence at the tribunal’s hearing on 23 May, 2014 a migration agent did not attend the hearing.

10. On 7 July, 2014 the tribunal delivered its decision and reasons on the review application.  The decision was faxed to the family’s migration agent on 8 July, 2014.  The family lodged their application for review of the tribunal’s decision with this Court on 8 August, 2014.

The tribunal’s decision

1. The tribunal identified that the issue in the applicants’ case was “whether or not the applicant daughters’ fear of being circumcised in Indonesia is well-founded and whether or not there is a reasonable relocation option for the applicants.”

2. The tribunal’s reasons show that it understood the arguments advanced by the fourth applicant and the fifth applicant.  The fourth applicant did not suggest that the tribunal had misunderstood the arguments put to it.

3. The fifth applicant’s oral evidence provided, in summary:

   a)She does not want to return to Indonesia because on the family’s last visit her parents and her maternal uncle wanted to force the eldest child to be circumcised;

   b)She responded to her family’s request by stating that she would not like this to happen and did not want her daughter circumcised. Her mother became upset and angry and insisted the circumcision take place;

   c)She (the fifth applicant) was circumcised at around the age of 5 years;

   d)If she refuses to have her daughters circumcised in Indonesia she will be isolated and ostracised;

   e)Her relatives would force the circumcision if they lived in Indonesia near her family;

   f)If the family lived elsewhere in Indonesia, they will have to live in a Yemeni-background community because living outside such a community could be risky;

   g)Even if they live in another Yemeni-background community on another island in Indonesia her daughters will be required to be circumcised; and

   h)She will not have her daughters circumcised.

4. The applicant father’s oral evidence provided, in summary:

   a)He does not want to return to Indonesia because he fears his daughters will be circumcised;

   b)If he and his wife refuse to have their daughters circumcised “it will cost their future”.  He claimed that his mother arranged to kidnap his niece and nephew because his sister married a non-Yemeni Indonesian;

   c)His relatives would circumcise his daughter if he and his wife refuse;

   d)He cannot live elsewhere in Indonesia because his name is a Yemeni name;

   e)If he lived elsewhere he would have to live in a Yemeni area and he said that some girls in Indonesia were raped for being different; and

   f)He will not have his daughters circumcised.

5. The tribunal  considered these claims and held that:

   a)female circumcision is prevalent in Indonesia and that it is increasingly customary for girls to be circumcised in Indonesia;

   b)it is the child’s parents who decide whether or not a child will be circumcised and as both the fourth and fifth applicants oppose circumcising their daughters, it was satisfied they will not be circumcised in Indonesia at their direction.

   c)it was not likely that relatives in Indonesia would forcibly abduct the first, second and third applicants to have them circumcised; however, it noted that the fourth applicant’s mother had previously arranged a kidnap and considered that it could not discount as remote similar action against the applicants and accepted country information revealing protection of the applicants would not be forthcoming from the state.

   d)there is a real chance that the first, second and third applicants may be forcibly circumcised by arrangement of the fourth applicant’s mother in Indonesia.

   e)it would not be unsafe, unreasonable or impractical for the family to move to another part of Indonesia;

   f)as the country information did not indicate that all girls in Indonesia are circumcised there must be families in Indonesia who do not circumcise their girls and there was no evidence before the tribunal that this had resulted in any serious or significant harm to those girls or their families;

   g)it was not satisfied on the evidence before it that there is any real chance or risk of the applicants being forcibly taken by others and circumcised if the applicants moved to a new part of Indonesia.

   h)there was no indication of any wariness of a new arrival in a community in Indonesia that would give rise to open hostility or threat. Instead, they may suffer emotional discomfort of non-acceptance.  It was not satisfied that this amounted to serious or significant harm for the purposes of the Migration Act 1958 (Cth).

   i)on the evidence before it, it was not satisfied that the applicants’ Indonesian families or relatives would pursue them in another part of Indonesia to forcibly take the daughters for circumcision.

   j)it was not satisfied that there is a real chance or real risk of serious or significant harm to the applicants if they move to another part of Indonesia to avoid their relatives.

   k)the fourth and fifth applicants fear of harm to the applicants is localised to their home area.

   l)the fourth and fifth applicant are educated and have professional employment skills and experience. They would be able to find somewhere to live and employment opportunities in another part of Indonesia;

   m)it was reasonable, in the sense of practicable, for the applicants to relocate in to another Yemeni-background community in Indonesia;

   n)it was not satisfied that any of the applicants was a person in respect of whom Australia had protection obligations.

6. The tribunal concluded that the applicants did not satisfy the criterion set out in s.36(2)(a) or (aa) of the Act for the grant of the visas. It affirmed the delegate’s decision.

The grounds of review

1. Grounds 1 and 2 of the application are expressed as follows:

   1.  The RRT at point 43 of the decision record found that there was a real chance that applicant daughters be forcibly circumcised by their grandmother.

   2.  The RRT at point 50 found that applicants families may discover where the applicants are if they relocate.

2. As the first respondent points out, these grounds merely repeat factual conclusions of the tribunal.  There is no allegation of jurisdictional error advanced in these grounds.

Ground 3

1. However, the recitation of the findings set out in grounds 1 and 2 appear to be stated as preliminary observations leading into ground 3 of the application, which is in the following terms:

   3.  The RRT at point 51 concluded that the applicant families will not pursue applicant in another part of Indonesia.  This conclusion is based on RRT understanding that “their relatives have ceased visiting them in Australia”.  This was incorrect understanding.  It was the applicants that visited relatives in Indonesia and not the reverse.

2. Paragraph 51 of the tribunal’s reasons is in the following terms:

   51.    The Tribunal is not satisfied the applicants’ families or relatives would pursue them in another part of Indonesia to forcibly take the daughters for circumcision. There is no evidence before the Tribunal that this may occur. The Tribunal notes the applicants’ evidence that since their last visit to Indonesia in 2012, when circumcision of the eldest daughter was raised, their relatives have ceased visiting them in Australia.  This suggests to the Tribunal that the families have a lack of interest in pursuing the applicants’ or forcing the issue, outside the home area.  The Tribunal is not satisfied on the evidence before it that there is a real chance the applicants’ families or relatives would pursue the applicants to take the daughters for circumcision, if they relocate to another part of Indonesia.

3. The applicants’ submissions misinterpret the tribunal’s reasons.  The tribunal acknowledged and recorded that the applicants had visited Indonesia and on their last visit the question of circumcision had been raised.  Further, the tribunal’s statement that their relatives have ceased visiting them in Australia was not inconsistent with the evidence before the tribunal given by the parents.

4. Having found that the children were at a real risk of being forcibly circumcised by arrangement of the fourth applicant’s mother if they lived in their home area, the tribunal was bound to explore the issue of relocation within Indonesia.  As the first respondent points out, it was a relevant matter for the tribunal to consider whether the family’s relatives would pursue the fourth and fifth applicants outside of their home area in Indonesia so as to forcibly circumcise their daughters. 

5. In that respect, the tribunal correctly instructed itself as to the law to be applied by reference, principally, to SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51:

   44.    The High Court has confirmed that, depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.  However it is widely accepted that even where the feared persecution is localised, a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him or her to do so.  The High Court has endorsed this proposition, explaining that what is reasonable, in the sense of practicable, must depend upon the particular circumstances of the applicant and the impact upon that person of relocating within their country.  As Kirby J stated, the supposed possibility of relocation will not detract from a ‘well-founded fear of persecution’ where any such relocation would, in all the circumstances be unreasonable. 

   (footnotes omitted)

6. The tribunal considered the possibility of the applicant’s moving to another part of Indonesia and raised that matter with them.  It was no part of the applicants’ case that the fourth and fifth applicants’ relatives would search out and find the applicants, and forcibly circumcise the children.  The fourth and fifth applicants objections to relocation were that:

   a)they would need to live in a Yemeni-background community, that the community would eventually find out the daughters were not circumcised, and that the community would put pressure on the applicants for the applicant daughters to be circumcised; and

   b)they would be considered a threat if they moved somewhere else and locals would be wary of them.

7. Nevertheless, the tribunal raised for consideration the prospect that the applicants’ families might seek them out.  As to that the tribunal said:

   50.    The applicant wife and the applicant husband did not give evidence before the Tribunal that their families or relatives would locate them if they relocated and forcibly take the daughters for circumcision. However the Tribunal will consider this. The Tribunal notes that Indonesia is a very large country made up of thousands of islands. However the Tribunal accepts there is a chance the applicants’ families may discover where the applicants move to, through possible inter-connectedness and inquisitiveness of Arab-descent communities in Indonesia.

8. The tribunal then disposed of this matter in paragraph 51 of its reasons as set out above.

9. As to the objections to relocation raised by the fourth and fifth applicants, the tribunal said:

   52.    As stated above the Tribunal accepts the applicant’s evidence that there may be some pressure from a new community if it is discovered the applicant daughters are not circumcised. The Tribunal is satisfied, as articulated by the applicants, that community pressure upon the applicants for the daughters to be circumcised would be in the form of verbal admonitions, disapproval, and possible ostracism. While unpleasant the Tribunal finds this does not rise to the level of serious harm or significant harm, as contemplated by the Act. In other words, the Tribunal is not satisfied it is of sufficient seriousness to be considered persecution. The Tribunal is also not satisfied it amounts to any of the harms defined as significant harm in the Act.

   53.    The applicant husband’s additional reason for not relocating, the wariness of a new community, is also not serious harm in the Tribunal’s view. There is no indication any wariness of a new arrival would give rise to open hostility or threat. The applicants’ examples of women being raped because they are different was, according to the evidence given by the wife, in the context of ethnic riots in the 1990s where the victims were ethnic Chinese not ethnic Arab; and in the evidence given by the husband, just a generalised expression of fear of an occurrence that may or may not happen anywhere. There is no substantive evidence that girls or women, particularly of ethnic Arab origin, are raped because of their ethnic difference or because they are new arrivals in a community. On the evidence before it the Tribunal is not satisfied there is any real chance or risk that any wariness by a new community would result in actual harm to any of the applicants, beyond the emotional discomfort of non-acceptance. The Tribunal is not satisfied this amounts to serious or significant harm.

   54.    The Tribunal is satisfied that the applicants’ fear of harm is localised to their home area. The Tribunal is not satisfied on the evidence before it that there is a real chance or real risk of serious or significant harm to the applicants if they move to another part of Indonesia to avoid their relatives.

10. As the first respondent points out, those findings could not be said to be irrational, illogical or not based on findings or inferences of fact supported by logical grounds (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [40]).

11. I accept the first respondent’s argument that there is no error of fact in paragraph 51 of the tribunal’s decision as there is an evidentiary basis for the tribunal’s reasoning. Furthermore, the conclusions reached by the tribunal in that paragraph were not conclusions that were so illogical or unreasonable that no decision-maker could have reached them.

12. I accept the first respondent’s submission that the applicants’ argument on this ground is an impermissible attempt to revisit the merits of the tribunal’s decision.  No jurisdictional error is revealed by this ground of review.

Ground 4

1. Ground 4 of the application is in the following terms:

   4.  At point 47 of the decision record, the RRT observes that not “all” girls in Indonesia are circumcised. A well founded fear of circumcision does not require “all” to be circumcised.”

2. I accept the first respondent’s argument that this ground appears to be misconceived.  At paragraph 47 of its reasons, the tribunal said:

   While the Tribunal accepts that a community in a new locale may discover the daughters are not circumcised and put pressure upon the applicants for the daughters to be circumcised there is no evidence, either by the applicants or in the available country information, that this would result in the applicant daughters being forcibly circumcised. The Tribunal observes that the country information does not indicate that all girls in Indonesia are circumcised. Accordingly there must be families in Indonesia who do not circumcise their girls. There is no evidence before the Tribunal that this has resulted in any serious or significant harm to those girls or their families.

1. The tribunal does not suggest in that paragraph that the fact that all girls in Indonesia are not circumcised must mean that the applicants cannot have a well-founded fear of being circumcised or a well-founded fear of persecution.  What it does suggest is that there was no evidence to suggest that opposition to the circumcision of a child by that child’s parent results in any serious or significant harm to those girls or their families.  That is to say, the tribunal was considering the effect upon families of uncircumcised girls so as to determine whether they might be subjected to reactions that might be said to be serious or significant harm for the purposes of the Act.

2. The tribunal had already determined that the children had a well-founded fear of persecution in their home area because there was a chance that they might be abducted by their grandmother and forcibly circumcised.  The tribunal’s remarks set out above were made in the context of the tribunal’s consideration of the reasonableness of relocation of the applicants within Indonesia.  Within that context, the significance to be attached by the tribunal to the lack of any evidence suggesting serious or significant harm for persons in the applicants’ position was a relevant matter for the tribunal’s attention.  The tribunal’s observation that there was no evidence before it to suggest that a failure by a family to have their female children circumcised “has resulted in any serious or significant harm to those girls or their families” was not said by the applicants to be wrong.  I was taken to no evidence that would gainsay the tribunal’s statement.

3. This ground reveals no jurisdictional error.

Ground 5

1. Ground 5 of the application is in the following terms:

   5.  The RRT considered country information in relation to Indonesia as a whole and not to Yemeni Indonesians as claim to be and gave evidence that cultural norms different those of general Indonesians.

2. Between paragraphs 27 to 36 (inclusive) of the tribunal’s reasons the tribunal recorded the consideration given to the country information, including information particular to Indonesian Muslims, that the tribunal had before it and that was relevant to female circumcision in Indonesia.  The information that the tribunal had before it, and which it seemingly accepted, indicated that practices concerning female circumcision varied across Indonesia.  None of the information to which the tribunal referred in its reasons was said to be specific to Yemeni-background Indonesians.

3. But that is not to the point for three reasons:

   a)First, the material and information was relevant generally to the inquiry that the tribunal had before it;

   b)Secondly, the selection of, and weight to be attached to, country information is a matter for the tribunal as part of its fact-finding function.  The Court has no place in reviewing the accuracy of, or the weight to be attached to, any country information utilised by the tribunal.

   c)Thirdly, in part by reference to the country information that it did accept, the tribunal in this case found that there was a real risk of serious harm to these children by reason of the risk that they might be abducted and circumcised.

4. The applicants did not suggest that there was some information before the tribunal that there were some material differences in practice between Yemeni Indonesians and non-Yemeni Indonesians when it came to circumcision of their female children.  Nor was it suggested that whatever differences there might have been would or should have impacted upon the tribunal’s assessment of the risks of these children in the area in which their parents’ extended families lived in Indonesia (which it found existed), or in the other Yemeni Indonesian communities to which the tribunal found the applicants could relocate (in which the risks identified for the children in their parents’ home area, did not exist).

5. This ground reveals no jurisdictional error.

Conclusion

1. The applicants’ grounds of review do not establish any jurisdictional error by the tribunal.  The decision is a privative clause decision for the purposes of s.474(2) of the Act and is not reviewable by this Court.

2. The application must be dismissed with costs at the prescribed rate.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Deputy Associate: 

Date:  23 December 2014