CAZ16 v Minister for Immigration
[2019] FCCA 394
•22 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAZ16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 394 |
| Catchwords: MIGRATION – Application for judicial review – protection (class XA) visa – whether the Tribunal examined particular circumstances of the Applicant – whether Tribunal properly considered country information – family violence protections – no error apparent – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721 CBH15 v Minister for Immigration & Anor [2017] FCCA 2462 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 |
| Applicant: | CAZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1612 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 11 December 2018 |
| Date of Last Submission: | 11 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 22 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms G. Costello |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr C. McDermott |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application filed 28 July 2016 and amended 22 November 2018 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1612 of 2016
| CAZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application filed 28 July 2016 and amended on
22 November 2018, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’). This decision, dated
1 July 2016, affirmed a decision of a delegate of the First Respondent to refuse a grant of a Protection (Class XA) visa (‘Visa’).
Background
Chronology
The Applicant is a citizen of Malaysia and arrived in Australia on 28 March 2014 on a visitor visa.[1]
[1] Court Book 14; 75.
On 16 May 2014, the Applicant applied for the Visa.[2]
[2] Ibid 1 – 38.
On 5 November 2014, the Applicant attended an interview with a delegate of the First Respondent.[3] On 15 December 2014, the delegate refused a grant of the Visa.
[3] Ibid 64 – 65.
On 7 January 2015, the Applicant applied for a review of the delegate’s decision to the (then) Refugee Review Tribunal.[4]
[4] Ibid 84 – 102.
On 22 June 2016, the Applicant appeared at a hearing before the Tribunal with the assistance of an interpreter.[5]
[5] Ibid 116.
On 1 July 2016 the Tribunal affirmed the decision of the delegate.[6]
[6] Ibid 127.
Claims of the Applicant
The Applicant is of Tamil ethnicity and was adopted by a Hindu family.[7] She converted to Christianity when she was around 12 years old but her family did not condone her conversion and punished her for going to church.[8] Her father was abusive, forced her to hand over wages from her work and drank.[9]
[7] Ibid 129 [11].
[8] Ibid.
[9] Ibid, 129 [11]; 131 [17]; 132 [24].
In February 2014, the Applicant filed a police report about her father beating her, having discovered that she was in a relationship with a Christian boy. She claims that her aunt had powerful connections in politics and gangs and was able to bribe the police so that the case was dropped and the Applicant was returned to her family.[10] She also claims her aunt’s influence resulted in her Christian boyfriend being assaulted multiple times, including one instance where he had to be hospitalised.[11]
[10] Ibid 132 [25].
[11] Ibid 136 [37].
The Applicant’s parents planned to take her to a rural village and force her to marry an Indian man who is a gangster.[12] On the day of her wedding, she escaped the house she was kept in and went to a friend’s house. Since she did not have any documents, she decided to get these made up in another remote village, getting her ID and passport.[13]
[12] Ibid 130 [11]/
[13] Ibid.
She claims to have met a friend of her aunt, Suria Dhanalakshmi, while at the central train station in Kuala Lumpur.[14] She told Suria Dhanalakshmi about the abduction and Suria offered to let the Applicant stay with her in Johor. Suria Dhanalakshmi lived in Australia and invited the Applicant to come with her to Australia and apply for protection.
[14] Ibid 135 [33].
About three months after the Applicant reached Australia,
Suria Dhanalakshmi asked the Applicant to leave as she has been threatened by the Applicant’s aunt.
In November 2014, the Applicant’s Christian boyfriend travelled from Malaysia and they were married in Australia.
The Applicant fears that if she returns to Malaysia, she will be forced to divorce and remarry, killed or otherwise harmed by her family and there is no one that can protect her in her home country.[15]
[15] Ibid 130 [11].
Tribunal decision
The Tribunal accepted certain circumstances in the Applicant’s background, such as: she was adopted; that her father was abusive; that he did not approve of her relationship; that she had married an ethnic Indian Malaysian man who is a Christian and practising Jehovah’s Witness;[16] that the Malaysian police may have been unresponsive to the Applicant’s police report of 17 February 2014 and her husband’s police report of 21 February 2014 because they saw it as a minor domestic matter.[17] However, the Tribunal otherwise found that ‘the Applicant has fabricated key elements of her claims and has exaggerated other elements’.[18]
[16] Ibid 138 [45].
[17] Ibid [43].
[18] Ibid.
The Tribunal did not accept that her family had arranged for the Applicant’s then-boyfriend to be harmed.[19] The Tribunal did not find it plausible that, if the Applicant’s husband had been beaten to the point of hospitalisation in the past, he would return to Malaysia on three occasions after leaving the country.[20] The Tribunal did not accept the explanation that the Applicant’s husband wished to prioritise finishing his studies as ‘it would be very difficult to start over again’.[21] The Tribunal concluded that the Applicant’s husband had never been harmed by the Applicant’s family or their agents and that he did not genuinely fear return to Malaysia and this claim cast doubts on the credibility of the Applicant and her husband.[22]
[19] Ibid.
[20] Ibid 139 – 140 [49].
[21] Ibid 139 [48].
[22] Ibid 139 [49].
The Tribunal did not accept that the Applicant had been kidnapped by her family in order to marry her against her will.[23] It found that her account of this incident was ‘vague and unconvincing’[24] and that it was improbable that the Applicant would have been left alone to dress in a wedding sari, allowing for her alleged escape.[25] Similarly, the Tribunal found that the Applicant’s claimed encounter with Suria Dhanalakshmi to be ‘vague and unconvincing’ and very improbable.[26] There were further inconsistencies between the evidence given at the hearing before the Tribunal and the written evidence provided by the Applicant at various stages of her Visa application.[27] The Tribunal also did not accept the evidence given by the Applicant regarding her aunt’s position of influence and her attitude towards the Applicant and her husband.[28]
[23] Ibid.
[24] Ibid 140 [50].
[25] Ibid.
[26] Ibid 141 [52].
[27] Ibid 141 – 142 [53].
[28] Ibid 142 [54] - [55].
Overall the Tribunal found that the Applicant and her husband were not credible witnesses and did not accept the Applicant’s claims that she faces a real chance of persecution amounting to serious harm or a real risk of significant harm if returned to Malaysia.[29]
[29] Ibid 143 [57], [58], 146 [61] – [66].
Grounds of review
The further amended originating application, filed 22 November 2018, stated the following grounds of review:
1.The Tribunal failed to consider the Applicant’s specific circumstances in considering the cumulative risk of being young, an ethnic Tamil, a convert from Hindu to Christianity, a Jehovah’s Witness, a domestic violence victim and married interfaith against her father’s wishes, and the Tribunal thereby failed to carry out its review.
2.The Tribunal failed to consider significant content of country information evidence before it and thereby failed to carry out its review.
Particulars
i.The Tribunal failed to consider the content of the DFAT Country Report dated 3 December 2014 that stated:
a. domestic violence in Malaysia continued to be “a serious problem”: [3.62];
b. police training of domestic violence is “limited” and “the judiciary receives little to no training in the application of relevant law”: [3.63]; and
c. while the situation in respect of domestic violence was improving “confusion between federal and state laws and a lack of capacity within the police and judiciary, make it difficult for women to gain state protection and to safely leave violence relationships”: [3.65].
ii.The Tribunal failed to consider the content of “Malaysia Country Information Request CII50417121007024 – Honour Killings”, DFAT 23 June 2015 that stated:
a. While contacts had not found information on “honour killings” of Hindu women among the Hindu community in Malaysia contacts “suggest that an interfaith couple could face violence or threats of violence from family members”, “protections available could be limited” and the Malaysian Government does not release statistical data on hour killings.
b. While honour killings have not featured, fatalities had occurred as a result of domestic violence in Malaysia and some of those fatalities may share similar elements to honour killings in that perpetrators believed they had been shamed and had the right to abuse and had ownership over the murdered individual.
c. There are very few, if any, shelter spaces for couples.
d. There was significant inconsistency and disparity in the ability of women to access justice and protection in Malaysia following experiences with domestic violence.
3.The decision was made beyond power because it was unreasonable: no reasonable decision maker would have found that the Applicant could access protection from domestic violence in the Applicant’s circumstances, in light of the country information evidence before the Tribunal.
The Applicant relied on the affidavit of Sarah Austin, solicitor, affirmed 22 November 2018, which exhibited the country information referred to by the Tribunal.
Submissions of the Applicant
The Applicant submits that it was not open to the Tribunal to find that the Applicant and her husband did not face future harm from domestic violence from her family. This is in light of the country information indicating that domestic violence in Malaysia continues to be ‘a serious problem’,[30] police and judiciary training on relevant law is ‘limited’,[31] and that the confusion between state and federal laws make leaving violent relationships difficult.[32] The Applicant says this amounts to a failure of the Tribunal to carry out its statutory task by failing to consider whether ‘the theoretical protection available would actually remove the fact of the real risk the Applicant would suffer significant harm’.[33]
[30] DFAT Country Report, Malaysia [3.62].
[31] Ibid [3.63].
[32] Ibid [3.65].
[33] Applicant’s submissions filed 21 November 2018, 3 [15].
The Applicant submits that the Tribunal did not provide sufficient reasons for rejecting the Applicant and her husbands’ claim to be at risk of an honour killing if returned to Malaysia and failed to consider the particular risk of reprisals in the context of a Hindu/Christian relationship. This is on the basis that the Tribunal made findings on the basis of country information which commented on Hindu/Muslim relationships and not specifically Hindu/Christian relationships. Similarly, the Applicant submits that the risk profile applied to by the Tribunal was that of a ‘non-convert male Jehovah’s Witness’ and that her circumstances are very different.[34]
[34] Ibid 5 [19].
Overall, the Applicant submits that the Tribunal did not give sufficient regard to the Applicant’s particular circumstances, citing CBH15 v Minister for Immigration & Anor [2017] FCCA 2462 [44] and ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721 (‘ABAR15’). Further, the Applicant submits that the Tribunal did not have appropriate regard to information that suggested that;
a)‘…an interfaith couple could face violence or threats of violence from family members’;
b)protection could be limited;
c)fatalities have occurred from family violence;
d)the context of these killings share distinct similarities to honour killings;
e)there are few, if any, family violence shelter spaces for couples; and
f)‘there was significant inconsistency and disparity in the ability of women to access justice and protection in Malaysia following experiences with domestic violence’.[35]
[35] Ibid, 4 - 5 [16].
The Applicant asserts that, overall, the Tribunal’s decision was beyond power as it was unreasonable, given the material before the Tribunal regarding the Applicant’s circumstances and information on state responses to family violence in Malaysia. The Applicant relied on Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 [83], where Nettle and Gordon JJ stated that unreasonableness can be found through the result of the exercise of power and that a finding of legal unreasonableness is not limited to the most extreme cases.[36] Further, unreasonableness can be made out where there is ‘no evidence and intelligible justification for the decision’.[37]
[36] Ibid 6 [21].
[37] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 [82].
Additionally, the Applicant also submits that the Tribunal failed to consider whether the Applicant would be protected from ongoing economic violence by being deprived of her earnings by her father.[38]
[38] Ibid 5 [17].
Submissions of the First Respondent
In response, the First Respondent submits that the Tribunal considered, separately, the claim that the Applicant and her husband made regarding the actions of her father, family, and gangs in Malaysia and the claim that the Applicant and her husband would not be able to access state protection in the event of family violence.[39] Given the credibility findings of the Tribunal at [49] of the record of decision, the First Respondent submits that the Tribunal did not err in rejecting the claims regarding potential honour killings. It is further submitted that, even if there was an error in the findings regarding potential harm from her father (not conceded), the Tribunal rejected the claim on the independent basis of credibility in addition to the content of the country information relied upon.[40]
[39] First Respondent’s submissions filed 5 December 2018 [23].
[40] Ibid.
The First Respondent submits that the Tribunal’s findings on potential harm to the Applicant and her husband from the Applicant’s family were open to it on the material available, given that the accuracy, choice and weight given to country information is a matter for the Tribunal.[41]
[41] Ibid [24].
In response to the submission by the Applicant that the Tribunal did not have appropriate regard to pieces of information contained in the country information, the First Respondent submits that the information highlighted by the Applicant relates to spousal relationships. The First Respondent says that, as the information is about spousal relationships and not familial relationships generally, ‘it is not therefore apparent that the identified material had any relevant bearing on the specific circumstances of the Applicant and her husband given that the Applicant feared violence at the hands of her Hindu father’.[42] Further, the First Respondent submits that even if the information was directly relevant, it was open for the Tribunal to use selected parts of the information to draw its own conclusions of fact.[43]
[42] Ibid [25(a)].
[43] Ibid [25(b)].
The First Respondent submits that the Tribunal had proper regard and gave proper consideration to the particular risk of harm arising from the Applicant’s Christian/Hindu relationship. The First Respondent points to [40] of the Tribunal’s reasons, which records the questioning of the Applicant over honour killings in Malaysia in the context of Hindu/Muslim relationships, stating that this demonstrates consideration of the source material. As the Tribunal was aware of the particular country information, shown by the acknowledgement in the material, the First Respondent submits that it was open to the Tribunal to draw its own conclusions of fact from the material, as choice and weight given to country information is a matter for the Tribunal.[44]
[44] Ibid [26] - [27].
The First Respondent submits that the Applicant’s reliance on ABAR15 is ‘inapposite to the circumstances of this case’[45] and that:
The conclusion of ‘legal unreasonableness’ open to be drawn in ABAR15 is, respectfully, not open to be drawn in the circumstances of this case. The Tribunal’s approach to the conclusions it draws at [60], based on the material it cited at [59], is precisely of the lawful kind identified by Charlesworth J in ABAR15 at [87].[46]
[45] Ibid [28].
[46] Ibid [31].
The First Respondent submits that the claim that the Applicant feared ongoing economic violence and not being able to access state protection did not arise with tolerable clarity and there was no error in failing to consider such a claim.[47]
Consideration
[47] Ibid [32].
Ground 1
The Tribunal’s findings that the Applicant had access to effective state protection were made against the background of a finding that the Applicant did not face a risk of significant harm from the Applicant’s father, aunt or gangsters engaged by them.[48] It did not accept those claims because of significant concerns with the Applicant’s credibility. Those concerns are set out in detail and the credibility findings are not challenged.
[48] Ibid [58].
While the Tribunal accepted that the Applicant may have in the past faced harm or controlling behaviours from her father, it did not accept the claims made by the Applicant and her husband regarding the harms allegedly posed by the Applicant’s father and aunt due to their interfaith relationship.[49]
[49] Ibid [45].
In addressing the alternative conclusion that there was a risk of harm, the Tribunal canvassed country information at [59] and in particular, referred to the services provided to victims of domestic violence. The Applicant submits the Tribunal failed to consider relevant parts of the country information in particular [3.62] – [3.65] of the DFAT country report of 3 December 2014.
In my view, the Tribunal has summarised the country information in relation to family violence and refers to concerns about police corruption at [60]. The Tribunal properly assesses the country information against the facts found by the Tribunal. The Tribunal was entitled to give weight to particular parts of the country information having regard to those findings of fact. In ABAR15 at [87] where Charlesworth J stated:
Generally speaking, it may be open to the Minister (or, on review, the Tribunal) to cherry pick from among various sources of country information so it as to form, by its own evaluation of the selected material, its own conclusions of fact. It may also be accepted that, as a general rule, an administrative decision that involves the weighting and evaluation of countervailing considerations is not a decision amenable to interference by court on judicial review merely because the court might evaluate the considerations differently or record different considerations more or less weight and accorded by the Tribunal.
The consideration given by the Tribunal to country information must be considered against the claims actually made by the Applicant. At [24] of the Tribunal’s decision record, the Tribunal set out the Applicant’s claims in relation to domestic violence:
The Tribunal asked the Applicant to talk about the problems she has had with her father. She commented that her father was very abusive to her when she was a child and had beaten her, hit her with a belt, burnt her hands and caused a cut near her eye. She indicated that her father was very controlling and when she started working in Kuala Lumpur he would come to her workplace and stand at the exit to escort her home. She said her father controlled her bank accounts and the PIN used to access these accounts so she did not have access to her salary. She said she went to the police in February 2014 and that a copy of that report had been provided to the Tribunal, but the police took no action saying it is a minor case and there is nothing they can do. She said because there aren’t as influential she prevented the police taking any action against her father.
At [45] the Tribunal found:
The Tribunal accepts that the Applicant had lived in a relationship with her father where he sought to exercise a high degree of control over her and was verbally and physically abusive towards her on occasions. Tribunal accepts that the Applicant entered into a relationship with an ethnic Indian relation man who is a Christian and a practising Jehovah’s Witness and that she married this man in Australia on 28 December 2014. The Tribunal accepts that the Applicant’s father did not approve of this relationship and did not approve of the Applicant’s attempt to assert her independence when she turned 21 years of age. However, the Tribunal finds that the Applicant has fabricated key elements of her claims and has exaggerated other elements. While the Tribunal accepts the relation police may have been unresponsive to the Applicant’s police report of 17 February 2014 in her husband’s police report of 21 February 2014, because they saw it as a minor domestic matter, the Tribunal does not accept the Applicant’s claims that her family took her against her will to a remote village and sought to force her to marry an ethnic Indian gangster, that she escaped and fled to Australia following this incident, or that her father and/or aren’t arrange for gangsters to beat up her boyfriend.
The Tribunal considered the claims made by the Applicant and the country information that it referred to in its decision was relevant to the matters raised and supported the finding. The Tribunal was entitled to give weight to those parts of the country information that it considered relevant to the claims made by the applicant. There is no error in the approach taken by the Tribunal.
Ground two
A submission was made by the Applicant that the Tribunal failed to make findings of fact that the marriage was between a Hindu and a Christian convert and there had been a failure to consider country information in relation to threats to interfaith couples. An examination of [40] of the Tribunal’s reasons show that the Tribunal had regard to DFAT’s information regarding interfaith couples and threats of violence including honour killings. At [59] the Tribunal makes specific reference to DFAT’s information in relation to honour killings. The Tribunal’s findings at [60] in relation to the protections available in Malaysia were referable to the country information available to the Tribunal.[50]
[50] cf ABAR15 [88].
There was no failure on the part of the Tribunal to consider the claim circumstances of the applicant and the Tribunal’s treatment of country information took into account those particular circumstances.
Ground three
As to the ground that the decision was beyond power, because no reasonable decision-maker could have found that the Applicant could access effective protection from domestic violence, this ground is not made out.
The Applicant referred to and relied on ABAR15. In that case, Charlesworth J held that the Tribunal’s decision was affected by jurisdictional error as the findings in relation to protections from domestic violence were not capable of being supported by the country information before the Tribunal.
The particular circumstances that were addressed in ABAR15 (horrific violence inflicted on the applicant in that case, referred to by Her Honour at [7] and which violence was accepted by the Tribunal to have been inflicted) do not arise in the present case. Further, country information summarised at [59] referred to the support available to persons in circumstances claimed by the Applicant. That conclusion is supported by a reading of the country information relied upon and summarised by the Tribunal. Additionally, the country information indicates that protection against domestic violence was not limited to violence of an extreme type.[51] The Tribunal’s decision at [60] is not one without evident intelligible justification or, put another way, without a ‘logical, rational or probative basis’.[52] In making this assessment, I take into account what was said by the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 [30(5)]:
…to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
[51] See Court Book 143 [59].
[52] ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 [83].
For these reasons the application will be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 22 February 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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