CLB18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 585

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CLB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 585

File number(s):

MLG 1291 of 2018

Judgment of:

JUDGE TAGLIERI

Date of judgment:

7 July 2023

Catchwords:

 MIGRATION – protection visa application – application for judicial review – whether the Tribunal properly considered the Applicant’s claim that she feared being the victim of an honour killing and/or by failing to consider country information about honour killings – whether the Tribunal properly considered country information and submissions concerning Indian law and that implementation of them to afford protection of women were inadequate – whether the Tribunal properly considered the Applicant’s claims relating to the Khap Panchayat – jurisdictional error established – application for review allowed  

Legislation:

Migration Act 1958 (Cth) s476

Cases cited:

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Minister for Immigration and Border Protection v Stretton (2016) FCR 1

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

Division:

Division 2 General Federal Law

Number of paragraphs:

43

Date of hearing:

10 May 2023

Place:

Melbourne

Counsel for the Applicant:

Mr Mutton

Solicitor for the Applicant:

Holding Redlich

Counsel for the First Respondent:

Mr Lessing

Solicitor for the First Respondent:

Sparke Helmore

ORDERS

MLG 1291 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CLB18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

order made by:	JUDGE TAGLIERI
DATE OF ORDER:	7 July 2023

THE COURT ORDERS THAT:

1.A writ of certiorari issue quashing the decision of the second respondent dated 19 April 2018.

2.A writ of mandamus issue directed to the second respondent as constituted by a different member to reconsider and determine the applicant’s application for review according to law.

3.The applicant has liberty to relist her application for costs by writing to the Chambers of Judge Taglieri at [email protected] to seek an appointment before the Court.

THE COURT NOTES THAT:

A.The parties are to attempt to reach agreement as to the applicant’s application for costs, in which event they have leave to submit to Chambers a minute of the orders sought by consent.

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

1. On 11 May 2018, the Applicant filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”) dated 19 April 2018. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).

   BACKGROUND

2. The Applicant is a non-citizen who applied for a protection visa on 29 November 2013, which was refused by a delegate of the First Respondent on 30 October 2015, whose decision was affirmed by the Tribunal following a hearing on 19 September 2017.

3. The application for judicial review of the Tribunal’s decision came before me on 10 May 2023 for hearing. At the hearing, the both the Applicant and the First Respondent were represented by counsel.

   BASIS OF TRIBUNAL DECISION

4. For the purpose of applying for a protection Visa, the Applicant had relied on claims relating to:

   (a)abuse, beatings and threats from her ex-husband and his family; and

   (b)an ex-partner, also an Indian national, with whom she was in a relationship in 2008 and who sexually assaulted her.

5. The particulars of these claims are set out in some detail in the Tribunal’s reasons for decision and no complaint is made about the accuracy of the summary given.

6. The Tribunal largely accepted the evidence about the circumstances of the Applicant’s marriage and divorce, but it concluded that the Applicant did not face a real chance of persecution now or in the foreseeable future from her ex-husband or his family or their agents such as the village council, known as the Khap Panchayat, for reasons of her membership of a social group or any reason.[1]

   [1] Tribunal reasons at [39].

7. It also acknowledged there was discrimination against women in India, but in the Applicant’s circumstances was not satisfied it amounted to serious harm.[2]  It gave reasons for this conclusion based on country information it had discussed with the Applicant about multiple laws in existence in India for the protection of women.[3]

   [2] Tribunal reasons at [40].

   [3] Tribunal reasons at [50] and [51].

8. In arriving at the conclusions referred to at [6] and [7] of these reasons, the Tribunal relied on the following:

   ·It had been over five years since the Applicant last had contact with her ex-husband and the passage of time meant that the chance of reprisal from him or his family on return to India is remote;[4]

   ·The fact that the Applicant had returned to India and her home area, “numerous times” since last contact with her ex-husband;[5]

   ·The chance of the Khap Panchayat forcing her to return to her ex-husband is remote and that it did not accept that the Khap Panchayat would force her to do so;[6]

   ·The chance of her son being removed from her or harmed by the ex-husband and his family was remote;[7] and

   ·Her delay in applying for a protection visa.[8]

   [4] Tribunal reasons at [33].

   [5] Tribunal reasons at [34].

   [6] Tribunal reasons at [35].

   [7] Tribunal reasons at [37].

   [8] Tribunal reasons at [38].

9. In respect of the claims of harm concerning her ex-partner, the Tribunal also largely accepted the factual basis of the Applicant’s claims.  Namely, that she had been in a relationship between 2008 and 2011 which ended due to abuse and ultimately a serious sexual assault.  Further, that the ex-partner had been charged, tried, convicted, and sentenced to 20 months’ imprisonment.[9]

   [9] Tribunal reasons at [42] and [43].

10. The Tribunal also accepted that the Applicant had come under pressure from the ex-partner’s family in connection with the criminal proceeding, that the ex-partner had since been released from prison, and that he had made contacts with the Applicant’s mother on several occasions upon his return to India.[10]

    [10] Tribunal reasons at [44] to [46].

11. Despite these favourable actual findings, the Tribunal also accepted and, I infer, found that:[11]

    ·The Applicant had not been in a relationship with the ex-partner since 2011 and had not had any contact with him since that time;

    ·Upon return to India she will not be in a relationship with him; and

    ·The ex-partner is now married, has children, and does not live in her home village.

    [11] Tribunal reasons at [47].

12. Consequently, on the basis of the accepted evidence, the Tribunal found that there is not a real chance of serious harm from the Applicant’s ex-partner.  Further, it relied on evidence that the ex-partner knew where the Applicant’s family lives and that he and his family had opportunity to harm the Applicant’s mother and her son over the past three years, but had had not done so.[12]

    [12] Tribunal reasons at [48].

    COURT REVIEW

13. A review to this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought the Applicant needs 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

14. The amended application for review filed 13 April 2023 raises three grounds for review, which are fully particularised. In summary, they assert jurisdictional error by failing:

    (1)to consider (or properly consider) the Applicant’s claim that she feared being the victim of an honour killing and/or by failing to consider country information about honour killings (“Ground 1”);

    (2)to consider (or properly consider) country information and submissions concerning Indian law and that implementation of them to afford protection of women were inadequate (“Ground 2”); and

    (3)to properly consider the Applicant’s claims relating to the Khap Panchayat and/or by failing to consider (or properly consider) country information in making findings as to the likelihood of whether the Khap Panchayat would force the Applicant to return to her ex-husband (“Ground 3”).

    APPLICANT’S CASE

15. The Applicant relied on:

    (a)Amended application for review filed 13 April 2023;

    (b)Affidavit of Kylie Elizabeth Hall filed 13 April 2023;

    (c)Outline of submissions filed 13 April 2023; and

    (d)A supplementary Court Book filed 13 April 2023, read into evidence without objection as Exhibit A-1.

16. In respect of Ground 1, the Applicant submitted that the Tribunal reasons did not refer to the Applicant’s claims about honour killing or adequately engage with the Applicant’s claims to fear it if she returns to India.  Further, the Tribunal did not consider relevant country information about honour killings, including where it evidenced that honour killings are prevalent in the region where the Applicant’s family resides and the involvement of the Khap Panchayats.  It was submitted that the Tribunal could not have accurately assessed the risk of harm without taking into account such information.

17. As to Ground 2, the Applicant submitted that the Tribunal erred in accepting that the Applicant was not at risk of harm as there are laws in place in India for the protection of women without taking into account the extent to which those laws are implemented or whether they are effective in addressing violence against women.  The Court was directed towards country information before the Tribunal identifying inadequacies and ineffectiveness of those laws.[13]

    [13] Country Information and Guidance – India: Women fearing gender-based harm/violence report

18. As to Ground 3, it was submitted that the Tribunal’s decision was flawed as it did not make findings about the Applicant’s claims concerning the Khap Panchayat’s interactions with her family after her departure and did not consider country information about the influence of the Khap Panchayat in local communities in India, including the region from where the Applicant originated.

    FIRST RESPONDENT’S CASE

19. The First Respondent relied on:

    (a)Outline of submissions filed 26 April 2023;

    (b)List of authorities filed 5 May 2023; and

    (c)A Court Book filed 10 July 2019, read into evidence without objection as Exhibit R-1.

20. The First Respondent submitted that Ground 1 should be rejected as the Tribunal addressed honour killing as the central basis for the Applicant’s claim to fear harm, as evidenced by outlined claims in the Tribunal’s reasons at [20]. Further, the Tribunal considered the Department of Foreign Affairs and Trade and reports released by the United Kingdom Home Office, but these were background information and the decision was instead made by assessment of the Applicant’s specific circumstances.

21. As to Ground 2, it was submitted that the Tribunal engaged with the laws and acknowledged issues in their implementation, but did not find that they were entirely ineffective.  Again, the Tribunal referred to and placed weight on the country information before it and considered it alongside the Applicant’s individual concerns, as it is entitled to do.

22. In respect of Ground 3, the First Respondent submitted that the Tribunal acknowledged the Applicant’s claims concerning the influence of the Khap Panchayat at [20] of its reasons, but then rejected the Applicant’s claim that the Khap Panchayat would force her to live with her ex-husband after giving such claim proper consideration.

    EVALUATION

    Ground 1

23. The First Respondent emphasised that the Tribunal’s duty to consider the Applicant’s claims was informed by the particular circumstances of the Applicant.  Counsel for the First Respondent submitted that the Tribunal did precisely that, as is evident from the member’s discussion with the Applicant during the hearing.[14] 

    [14] Affidavit of Kylie Elizabeth Hall filed 13 April 2023 at pages 8 to 15.

24. The Applicant’s circumstances related to a fear of harm of being killed for honour by the Applicant’s ex-husband or ex-partner and their families, and it was in this context that the Tribunal conducted its review. 

25. The First Respondent concedes that the claim about being killed for an “honour” reason was central to the Applicant’s fear of harm if returned to India.[15] 

    [15] Written submissions filed 26 April 2023 at [10].

26. However, it is submitted that it would be wrong for the Court to infer that, because the Tribunal did not use the phrase “honour killing”, it did not adequately consider the Applicant’s claim.[16] Accordingly, the First Respondent says that Ground 1 should be rejected.

    [16] Written submissions filed 26 April 2023 [9] to [12].

27. I agree that the factual context of the claims and the Applicant’s particular circumstances are properly relevant to the nature of the review to be undertaken by the Tribunal.  There is ample authority for such proposition.

28. However, the Applicant’s claims based on a fear of honour killing or being killed for “honour” reasons was not limited to a fear of such conduct by the ex-husband, ex-partner or their family members.  Rather, the claims were based on the broader fear of such conduct by the community and the Khap Panchayat or elders of communities from where she and her ex-husband, ex-partner and their families originated.  This is plain from [8], [18] and [23] of her statement which was before the Tribunal for its review.[17]

    [17] Court Book filed 10 July 2019 at pages 52 to 55.

29. There was an abundance of country information before the Tribunal about honour killings and the incidence of them in the area from which the Applicant originated. This material was relied upon to elucidate the claim of harm based on risk or chance of honour killing from the community and Khap Panchayat, as is obvious from the bolded sections of the submissions made on behalf of the Applicant for the purpose of the Tribunal review.[18]

    [18] Court Book filed 10 July 2019 at pages 206 to 209, especially page 207.

30. The Tribunal squarely addressed the “honour killing” claim in the context of the ex-husband, ex-partner or their family members, and I accept the First Respondent’s submissions in that regard.  However, the reasons for decision demonstrate that the Tribunal did not consider the claim in the context of the fear of harm because of community members and the Khap Panchayat.

31. Instead, the reasons for decision disclose that the Tribunal’s evaluation about the communities’ attitudes towards the Applicant and potential harm from the Khap Panchayat were confined to being forced to return to her ex-husband.[19]

    [19] Tribunal reasons at [35].

32. In addressing the honour killing claim based on dishonouring the ex-partner, the Tribunal did not consider the claim of potential harm from the community or the Khap Panchayat. This is also apparent from the Tribunal reasons at [42] to [48]. To the extent that the Tribunal addressed “adverse community interest” at [51] of its reasons, the reasoning is unclear and confusing and, fairly and beneficially read for the Tribunal, it was addressing the claim of harm based on discrimination and having lived out of wedlock, as is apparent from the heading immediately before its reasons at [49].

33. Although the Tribunal does refer to the Khap Panchayat at [54] of its reasons, when addressing whether the Applicant meets the statutory criteria for complementary protection, given its discussion at [35], [39], [50] and [51] of the Tribunal reasons, in my view cannot be taken to be a reference to the Applicant’s claim concerning “honour killing”.

34. On all the above reasons, Ground 1 succeeds and I reject all of the contentions made in respect of it by the First Respondent.

35. For completeness, the Ground 1 error is material because the Applicant made express claims about fear of harm based on “honour killing” and the country information relied upon provided direct evidence as to the incidence of such conduct, especially in the region from which the Applicant originated.  In these circumstances, if the Applicant’s claims about “honour killing” and the material relied upon had been properly considered, a different outcome could realistically have resulted.[20]

    [20] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, especially from [27] onward.

    Ground 2

36. This ground relies on an essential contention that, by failing to properly consider country information and submissions about laws in India to protect women, the Tribunal acted unreasonably and failed to complete its statutory task.

37. This ground and submissions in respect of it rely heavily on the submission that was made to the Tribunal after country information was put to the Applicant about the existence of protective laws in India.  That submission was that: [21]

    …overwhelmingly, the country information suggests that implementation of the laws is inadequate.

    [21] Supplementary Court Book filed 13 April 2023 at page 52.

38. The Applicant says that the Tribunal selectively took country information into account, and that in doing so lacked evident and intelligible justification, and, at least as to use of information in the United Kingdom Home Office report, it was plainly unjust.[22]

    [22] Minister for Immigration and Border Protection v Stretton (2016) FCR 1 at [5] to [6].

39. The First Respondent submits the Tribunal did not err as it was properly entitled to take into account the laws in existence in India, and take into account the Applicant’s personal circumstances.  This submission in general appears attractive, however, in assessing the extent to which the enacted laws afforded protection to the Applicant, the Tribunal had at the forefront of its mind the passage of time.[23]

    [23] As conceded by the First Respondent.

40. However, in circumstances where the Applicant had not been in India for the vast majority of the “passage of time”, the effectiveness of the laws should the Applicant return to India was a plainly relevant matter.  That is, it was material to the decision, contrary to that submitted at [30] of the First Respondent’s submissions.

41. Accordingly, Ground 2 succeeds.

    Ground 3

42. Noting the reasons above at [31], there is no merit in Ground 3. I accept the First Respondent’s submissions as to this ground as set out at [34] to [44] of its written submissions.

    CONCLUSION

43. As Grounds 1 and 2 of the amended application for review have succeeded, the matter should be remitted to the Tribunal for redetermination by another member and the relief sought is granted.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

Associate:

Dated:       7 July 2023

published by the United Kingdom Home Office dated 2015