CZT22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 423
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CZT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 423
File number: MLG 1999 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 24 May 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant a protection visa – finding that applicant would face a real risk of significant harm if returned to the place she previously lived but that she could reasonably relocate to another area – whether Tribunal considered integers of applicants claims in relation to relocation – whether, in assessing complementary protection, Tribunal was required to consider what applicant would do, rather than what she could do – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 476, 477 Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
BWB16 v Minister for Immigration and Border Protection (2018) 267 FCR 503; [2018] FCAFC 158
BXF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 573
BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107
CRI028 v The Republic of Nauru (2018) 92 ALJR 568; [2018] HCA 24
DQU16 v Minister for Home Affairs (2021) 273 CLR 1; [2021] HCA 10
EJC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3171
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802
MZACX v Minister for Immigration and Border Protection (2016) 161 ALD 73; [2016] FCA 1212
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of last submission: 17 February 2023 Date of hearing: 31 August 2022 Place: Perth Counsel for the Applicant: Dr A McBeth Solicitor for the Applicant: Clothier Anderson & Associates Counsel for the First Respondent: Ms K McInnes Second Respondent: Submitting appearance save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1999 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CZT22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
24 May 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). On 10 October 2017 the Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The applicant raises a single ground of application alleging that the Tribunal failed to consider an integer of her claim, namely, that she would attempt to extract her children from her husband’s care and in the process of doing this, she would be located and would face significant harm. For the reasons explained below, I am not satisfied that the applicant has established jurisdictional error in the Tribunal decision and I dismiss the judicial review application.
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia in February 2016 and made an application for a protection visa on 7 October 2016. On 8 March 2017 a delegate of the Minister decided not to grant the applicant a protection visa.
The applicant made an application to the Tribunal on 11 March 2017 seeking review of the delegate’s decision. The applicant attended a hearing convened by the Tribunal on 18 July 2017 and presented arguments and gave evidence at that hearing. The applicant’s claims for protection were that she feared physical harm from her brothers in Malaysia because she spent assets transferred to her by her parents, and she feared physical harm from her husband who was abusive and forced her to spend the money she inherited from her father.
The Tribunal affirmed the delegate’s decision on 10 October 2017.
TRIBUNAL DECISION
Despite some concerns about the applicant’s evidence, the Tribunal accepted the applicant’s claim that she had suffered past physical harm and threats occasioned by her brothers and husband in Malaysia. The Tribunal accepted that there was a real chance the applicant’s brothers and husband may try to harm her again in the future, but found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act as it was not satisfied that the harm the applicant may face would be for reason of race, nationality, membership of a particular social group or political opinion.
The Tribunal then considered whether the applicant met the complementary protection criterion in s 36(2)(aa) of the Migration Act. Having accepted that the applicant had suffered past physical harm by her brothers and husband, the Tribunal was satisfied that there was a real risk that her brothers and/or husband might be similarly motivated to cause her significant harm if she returned to Malaysia. The Tribunal was therefore satisfied that there was a real risk that the applicant would suffer the claimed harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia. However, the Tribunal was satisfied that the applicant would be able to reasonably relocate to an area of Malaysia where she would not face a real risk of significant harm and therefore, pursuant to s 36(2B)(a) of the Migration Act, it was taken that the applicant would not face a real risk of significant harm in Malaysia. This finding for the purposes of s 36(2B)(a) is the subject of the ground of application and is discussed in greater detail below.
JUDICIAL REVIEW APPLICATION
The applicant filed her application for judicial review on 14 November 2017 which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
By amended application, the applicant relies on a single ground:
The Tribunal failed to give proper consideration to an integer of the applicant’s claim, namely that she would attempt to extract her children from her estranged husband’s care, and that there was a real risk of her being located and subjected to significant harm in that context.
Particulars
(a)The Tribunal accepted at [36]-[37] that the applicant faced a real risk of significant harm from her husband and/or her brothers if she returned to her home area in Malaysia.
(b)The applicant’s evidence was that if she was to return to Malaysia and relocate to another area, she would attempt to get her children to come with her, and that she would need the help of some third parties in doing so, and that her husband and brothers would come to know of her location in that way.
(c)The Tribunal’s reasoning at [41] failed to deal with the integer of the applicant’s claim that the process of attempting to have her children join her would cause the applicant’s husband and/or brothers to know her whereabouts.
SUBMISSIONS OF THE PARTIES
Both parties filed written submissions ahead of the hearing and both parties were represented by Counsel who made oral submissions at the hearing.
Both parties also filed further written submissions after the hearing. The further written submissions were filed in circumstances where, in responding to a submission advanced by the Minister in writing, Counsel for the applicant orally submitted that in assessing whether the applicant met the complementary protection criteria, the Tribunal was required to assess what the applicant would do and not a hypothetical situation that it considered would have been a reasonable path for the applicant to take. Counsel for the Minister did not respond to this submission in her oral submissions and, in the course of preparing judgment in this matter, I formed the view that this had the potential to be a significant issue, which neither party had fully addressed in their submissions. I listed the matter for a directions hearing to hear from the parties as to whether they should be afforded a further opportunity to provide submissions addressing this issue. Counsel for both parties agreed that it was appropriate for the parties to have a further opportunity to make submissions and I made orders to facilitate the filing of further submissions. I thank the parties for providing these additional submissions.
The submissions advanced by the parties are summarised below.
Applicant’s submissions
The applicant submitted that her evidence to the Tribunal was that if she were to return to Malaysia to relocate to another area, she would attempt to have her children come and live with her. She claimed that she would need to ‘get help from someone’ to get her children and relocate with them and that as a consequence of that process, her brothers and husband ‘will come to know about it’.
The applicant submitted that the factual situation by which she would come to the attention of her husband and brothers if she managed to get her children to live with her in another part of Malaysia constituted a substantial integer of her claim, because it was the basis on which she would face a real risk of significant harm if she were to relocate. The Tribunal did not consider this integer, instead focusing only on the statistical difficulty of locating the applicant anywhere in Malaysia. The Tribunal did not respond to the applicant’s claim that it was the act of getting her children to come and join her, and thus leaving their father’s care, with the help of some unidentified person, that would cause her husband and brothers to know her location. Further, it did not address the claim that enrolling the children in school in the new location would provide a means for the applicant’s husband or brothers to track her down.
In response to the Minister’s submission that the Tribunal’s finding that it would be reasonable for the applicant to relocate without her children meant that it did not need to make a finding about what would happen if she sought to extract her children from her husband’s care on her return to Malaysia, Counsel for the applicant submitted, relying on DQU16 v Minister for Home Affairs (2021) 273 CLR 1; [2021] HCA 10 (DQU16), that the nature of the task under s 36(2)(aa) of the Migration Act is about what will happen as a necessary and foreseeable consequence of removal from Australia. The applicant submitted that in the present case, the Tribunal did not assess what would happen, namely the applicant’s evidence that she would relocate with her children, but rather assessed the hypothetical situation that it considered would have been a reasonable path for the applicant to take.
In the further written submissions, the applicant referred to DQU16 at [18]-[19] (extracted below) and submitted that the Tribunal must take a two-step assessment. First, as to ‘consequences’, the Tribunal must, based on the evidence before it, consider what is likely to happen when the applicant is removed from Australia. Second, as to ‘harm’, the Tribunal must assess whether there is a real risk that those circumstances will lead to significant harm.
The applicant submitted that the Tribunal was required to engage in a meaningful way with the evidence the applicant gave to make an assessment of what would happen, that is, what the consequences of her removal from Australia would be. The Tribunal’s analysis in the first sentences of [41] proceeds from an assumption that what would happen if the applicant returned to Malaysia is that she would attempt to get her children from her husband. The inadequacy of the Tribunal’s reasons in the first four sentences of [41] is not cured by the final three sentences of that paragraph (to the effect that it would not be unreasonable for the applicant to relocate without her children).
The applicant further submitted that it might have been open to the Tribunal to make a finding that she would not attempt to gain access to her children if removed to Malaysia, and therefore would not come to the attention of her husband or brothers. But, the Tribunal did not make such a finding. Alternatively, if the Tribunal had engaged with the applicant’s evidence about relocating with her children and considered that there was a risk that the applicant would suffer significant harm if she relocated with her children, it may then have been open to the Tribunal to consider whether the applicant would be in a position to modify her behaviour to avoid the harm, and whether she would in fact do so. But the Tribunal did not take that approach.
In reply submissions, the applicant submitted that the Minister’s further submissions misunderstand the applicant’s ground of review. The issue is not whether it could ever be reasonable to expect an applicant to relocate to another part of the country without their family. Nor is the question one of accepting or rejecting the circumstances in which an applicant would be prepared to relocate. Rather, the error made by the Tribunal is that it simply failed to address adequately the claims made by the applicant as to why she would face harm as a consequence of removal from Australia to Malaysia – namely that she would attempt to extract her children from her husband’s care and, in doing so, her husband and brothers would come to know of her whereabouts.
The applicant submitted that it was necessary for the Tribunal to accept that claim and deal with the ramifications, or alternatively, make a finding that the applicant would not take those actions upon return and therefore would not face the risk of harm that she claimed. Only then would the separate question of reasonableness arise. In failing to deal with the claim about the risks the applicant claims would arise from the actions the applicant says she would take upon return to Malaysia, the Tribunal has not completed its task on the ‘risk of harm’ limb of the reasonable relocation assessment. That was necessary before the ‘reasonableness’ limb became relevant.
Minister’s submissions
The Minister submitted that the Tribunal clearly identified the applicant’s claim that she would attempt to have her children come and live with her, that she would need to get help from someone to move to another location and that in the process her brothers and/or husband would come to know about it, and that the Tribunal addressed that claim at [41] of its reasons when it considered the risk of harm if the applicant’s children joined her in Malaysia if she relocated. The Minister submitted that it was unnecessary for the Tribunal to further assess this integer of the applicant’s claim in the light of its finding that she would relocate within Malaysia without her children. In this sense, the claim was subsumed within finding of a higher level of generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [47].
The Minister further submitted that, in any event, the Tribunal adequately dealt with and rejected the applicant’s claim as it was put. To this end, the Minister submitted (footnoted omitted):
The applicant did not claim that she would personally go retrieve her children from her husband. Instead, she stated that someone would assist her to move (with the implication being that that person would ‘retrieve’ her children and the children would then join her). The applicant gave no evidence of how someone assisting her children to move would lead to her husband or brothers finding her location, aside from a vague assertion that she would have to find a school for her children. She also gave no evidence of how enrolling her children in school would provide a means for the applicant’s husband or brothers to track her down. The Tribunal’s reasons at [41] demonstrate that [it] engaged with the claim as put but was not satisfied that the applicant would be located by her brothers and/or husband even if her children joined her. This was all that the Tribunal was required to consider in the light of the scant detail included in the applicant’s claim.
In the further written submissions, the Minister referred to comments of Gordon and Edelman JJ in CRI028 v The Republic of Nauru (2018) 92 ALJR 568; [2018] HCA 24 to the effect that the assessment of whether a person can relocate is answered not only by reference to the risk of harm, but also the individual circumstances of the person and what is reasonable and practicable for that person, and that the question is whether an applicant could reasonably be expected to relocate having regard to the circumstances of the applicant. The Minister submitted that the assessment is focused on what is reasonable for an applicant to do, not what they assert they will do.
The Minister submitted that DQU16 does not consider the correct approach to assessing reasonableness of relocation. DQU16 does not assist beyond confirming that s 36(2)(aa) focuses on the consequences of a person’s removal from Australia, but s 36(2B)(a) takes away the effect of those consequences if ‘it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm’. DQU16 is inapt to assess the consequences of the applicant’s removal from Australia, where those consequences must account for reasonable relocation.
The Minister submitted that whether it is reasonable for a person to relocate without their family is not a novel question and has been considered in cases such as BWB16 v Minister for Immigration and Border Protection (2018) 267 FCR 503; [2018] FCAFC 158 (BWB16) and BXF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 573 (BXF17). Those cases confirm that the task of the Tribunal is not to uncritically accept an applicant’s submission about the circumstances that they would be prepared to relocate in. The task of the Tribunal remains to consider the submissions put forward by an applicant about whether they could relocate and to decide, based on the circumstances of the case, if relocation would be reasonable.
The Minister submitted that the Tribunal recognised at [41] that the applicant’s preference would be to have her children live with her, but found that she could, and would, relocate without her children. This is implicit from the Tribunal reasoning that it was not satisfied that the applicant would be located ‘even if’ her children joined her and that ‘in any event her children are also not with her in Australia’. If the Court does not accept that the relocation finding constitutes a finding about what the applicant would do, the Court should nevertheless find that it comprised a finding about what the applicant could do, in the sense of whether it was reasonable for her to relocate without her children. This is still the right question.
CONSIDERATION
Applicant’s evidence to the Tribunal as to why she could not relocate within Malaysia
In order to assess the applicant’s ground, it is necessary to have regard to how the applicant articulated the relevant reasons why she could not relocate within Malaysia, as well as the way in which the Tribunal addressed these objections to relocation.
At the hearing, the Tribunal member explained to the applicant a number of concerns that it had about her evidence and claims. After a lengthy explanation, the following exchange took place (emphasis added):
MEMBER: Why not, given all those things, could you not move somewhere in Malaysia to avoid what you fear?
…
INTERPRETER: Yes. In Malaysia you can live anywhere. But going with my children to live somewhere, that is difficult. And also, my brother and husband will come to know about it.
Member: How will they come to know about it?
Interpreter: I need to get help from someone to move to another location, so if someone help they will come to know. And then my brothers, they have friends everywhere.
Member: Well, the country information suggests that Malaysia has a very large population. How will they know where you moved anywhere?
Interpreter: I have to give my address. I have to find school for my children, I have to have (indistinct).
Member: but you don’t have your children with you now, so why is it any different if you were here in Australia without your children as to another part of Malaysia without your children?
Interpreter: This is different, situation. In Australia, it is too far away, they can’t come. But in Malaysia it’s not like that.
…
In Australia the situation is different. I get protection there. But in Malaysia it’s not.
Member: But what I’m suggesting to you is there’s no reason you can’t move to a different part Malaysia – by yourself, the children don’t have to come with you, if the children haven’t come with you to Australia – and that you would not be at risk of harm from either your brothers or your husband if you moved to a different part of Malaysia, in circumstances where there’s a population of over 30 million people and they are unlikely to be able to find you.
…
Interpreter: that time I didn’t think I need to escape from my country and go live in another country.
Member: what time?
Interpreter: when I was leaving, I didn’t think about that. I had to (indistinct).
Member: well, is there any reason you could not go back to Malaysia and relocate to somewhere else? What would stop you from going to somewhere else?
Interpreter: I can’t go there. I can’t go there anyhow, I will be in problem and trouble.
Member: why?
Interpreter: money is the main reason. Money.
Member: you told me you have no money here.
…
Interpreter: I had to (indistinct) money. It’s not they will (indistinct). I can’t live there.
The Tribunal then provided the following summary of this exchange in [24(c)] of its reasons:
[The applicant] responded that in Malaysia she by live by herself anywhere but that going with her children to live anywhere is difficult and her husband and brothers will come to know about it. The Tribunal asked how her husband and brothers would come to know about it. [The applicant] responded that she would need to get help from someone to move to another location and that her brothers have friends everywhere and they would come to know about it.
The Tribunal indicated that the country information suggests that Malaysia has a very large population and queried how, on that basis, they would know if she relocated to somewhere else. [The applicant] responded that she would have to find a school for her children.
The Tribunal noted that [the applicant] does not have her children with her now and asked why it was different for her to be in Australia without her children as compared to being in another part of Malaysia without her children. [The applicant] responded that the situation in Australia is different because it is too far away and her children cannot come. However, in Malaysia it is different. The Tribunal suggested to [the applicant] that her children would not need to relocate with her, just as they have not come to Australia with her, and that given there are over 30 million people in Malaysia, her husband and brothers would not be able to find her. The Tribunal asked [the applicant] if on that basis there was any reason why she could not go back to Malaysia and relocate to somewhere else. [The applicant] responded that she cannot go there because she would be in “problem and trouble”. The Tribunal asked why. [The applicant] responded that money is the main reason. She has to settle the money (from her father’s inheritance). If not they will torture her. The Tribunal again suggested to [the applicant] that if she moved to somewhere else in Malaysia, amongst a population of 30 million people, there is no difference between not settling the money and being somewhere else in Malaysia, to being in Australia and not settling the money. [The applicant] responded that if she lives anywhere, she is unable to settle the money.
At the hearing before the Court, both parties’ Counsel made submissions about the manner in which the other Counsel interpreted the applicant’s evidence, as recorded on the transcript. In particular:
(a)Counsel for the Minister submitted that Counsel for the applicant ‘put a gloss’ on the applicant’s evidence to the Tribunal and sought to ‘rewrite the evidence’, when in his oral submissions he eloquently summarised that the applicant’s evidence was that she:
… would enlist help of someone else to extract her children from her husband’s care so that they could join her if she returned to Malaysia which, in turn, would mean that her husband or brothers would be alerted and would be able to locate and find her. The applicant’s evidence [was] that the enrolment of her children in the school in the new location would also provide a means to track her down.
Counsel for the Minister submitted that the applicant’s evidence did not involve the linking of ideas in the manner articulated by Counsel for the applicant. For example, when the applicant said she would need to get help from someone to move, she did not say who she would get help from or whether the person would help the applicant to move or her children, and the applicant did not in her evidence link the need to give her address with the purpose of enrolling her children in school.
(b)Counsel for the applicant submitted that to break up the different parts of the applicant’s evidence in the manner suggested by Counsel for the Minister and to focus so heavily on the precise words was unduly artificial in circumstances where the applicant was speaking with the assistance of an interpreter.
In my view, it is appropriate when considering evidence given through an interpreter to remain mindful that the words spoken by an interpreter are a judgment based on close correspondence in meaning and it might never be possible to achieve a perfect interpretation: BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508 at [52]. Taking into account the manner in which the applicant’s oral evidence as a whole was given in this matter, it is appropriate to make sufficient allowances for the fact that evidence was given through an interpreter, while at the same time, avoiding reconstructing the applicant’s evidence to mean something that she did not actually convey.
I am satisfied that the Tribunal accurately summarised the applicant’s evidence given at the hearing at [24(c)] of its reasons, and that it accurately understood that evidence. Notwithstanding the submissions advanced by the parties as to how the applicant’s evidence should be understood, there is no evidence that the interpretation of the applicant’s evidence was inaccurate and neither party appears to challenge the accuracy of the Tribunal’s summary of the applicant’s evidence.
Tribunal’s consideration of applicant’s reasons why she could not relocate
Having considered how the applicant’s claim was advanced, I now turn to how it was considered by the Tribunal. While the focus of the parties’ submissions is on [41] of the Tribunal reasons, it is relevant to set out those reasons in their full context of the Tribunal’s consideration of whether the applicant could reasonably relocate to a part of Malaysia where she would not face a real risk of significant harm. The Tribunal said at [38]-[43] (footnotes omitted):
38.As raised with [the applicant] at hearing, pursuant to s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
39.The Tribunal acknowledges [the applicant’s] claim that her brothers know a lot of people in Malaysia and would be able to find her anywhere. However, given the large population of Malaysia, over 30 million people as discussed with [the applicant], the Tribunal finds it remote that [the applicant] would be located by her brothers and/or husband in all areas of Malaysia given its very large population.
40.Further, there are a number of matters that suggest that it would be reasonable for [the applicant] to relocate to another area away from her previous home area. [The applicant] has previous work experience in both Malaysia and Australia and has proved herself to be resourceful and resilient by moving to a foreign country, Australia, where she knew no-one, and having lived here for over eighteen months has demonstrated an ability to look after herself. Malaysia has a low general unemployment rate of 3.3%, and the Tribunal is satisfied that [the applicant] could obtain employment to support herself. Further, as raised at hearing, DFAT assesses that Malaysians can and do freely relocate internally.
41.Notably, [the applicant] herself acknowledged at hearing that she herself could live anywhere in Malaysia but that going with her children to live anywhere is difficult and her husband and brothers will come to know about it. It is of course understandable that [the applicant’s] preference would be to have children with her. The Tribunal is not satisfied that even if her children joined her in Malaysia if she relocated, that she would be located by her brothers and/or her husband. Again, Malaysia has a very large population of over 30 million people such that the Tribunal considers it remote that [the applicant] would be located by them if her children joined her. In any event, her children are also not with her in Australia. The Tribunal therefore does not consider it unreasonable for to relocate within Malaysia without her children. That is no different to her coming to Australia without her children.
42.Having regard to all of these matters, the Tribunal is satisfied that it would be reasonable for [the applicant] to relocate to an area of Malaysia where there would not be a real risk that she would suffer significant harm occasioned by her brothers and/or her husband.
43.Pursuant to s36(2B)(a), there is therefore taken not to be a real risk that [the applicant] will suffer significant harm in Malaysia.
The interpretation of the Tribunal’s reasons is relevant to the resolution of the applicant’s ground of application. In my view:
(a)The Tribunal’s reasoning at [39] and in the first sentence of [41] amounts to a finding that the applicant could relocate without her children to an area in Malaysia where there would not be a real risk that she would face significant harm from her husband and/or brothers. The Tribunal at [40] addressed why it would be reasonable for the applicant to relocate, without regard to her preference that she relocate with her children.
(b)The Tribunal then at [41] addressed the applicant’s ‘preference’ to relocate with her children and made the following two independent findings:
(i)the Tribunal did not accept that the applicant would be located by her husband and/or brothers even if she relocated with her children; and
(ii)it would not be unreasonable for the applicant to relocate within Malaysia without her children.
Did the Tribunal actively and intellectually engage with the applicant’s reasons against relocation?
The applicant’s claim that she would be located by her husband and brothers if she relocated with her children had two limbs:
(a)she would need to ask someone to help her to move and through this, her husband and brothers would be able to locate her; and
(b)she would need to enrol her children in school.
The following propositions, which are relevant to the resolution of this ground, are well-established:
(a)The Tribunal is required to consider all claims and integers of claims advanced by an applicant: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at [42]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [57]-[58].
(b)In ‘considering’ the applicant’s claims, the Tribunal was required to engage in an ‘active intellectual process’: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 (Carrascalao) at [46].
It is clear in the present case that the Tribunal expressed a conclusion that it was not satisfied that the applicant would be located by her husband and brothers if she relocated within Malaysia with her children. The question is, however, whether in reaching this view, the Tribunal considered, by engaging in an active intellectual process, all integers of the applicant’s claim that if she relocated with her children she would be located by her husband and brothers.
Determining whether or not the Tribunal engaged in an active intellectual process ‘requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case’: Carrascalao at [47]. The Full Court of the Federal Court in Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3 identified at [37] the following matters that are relevant to determining whether the decision-maker had active intellectual engagement:
(1)First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a)the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272;
(b)it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c)a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carrier the onus of proof”: Carrascalao at [48].
In my view, in forming the conclusion that it was not satisfied that the applicant would be located by her husband and brothers ‘even if her children joined her in Malaysia if she relocated’, the Tribunal did not actively and intellectually consider all integers of the applicant’s claims. Beyond identifying the integers at [24(c)] in its summary of the applicant’s evidence, the Tribunal did not address in any way the reasons the applicant gave as to why she believed she would be located by her husband and brothers if she relocated within Malaysia.
The Tribunal’s reasons at [41] are silent as to its views about the applicant’s evidence that she would need to ask for assistance to relocate or that she would need to enrol her children in school. While the applicant’s evidence in this regard was minimal and lacked any detail, these two matters were the only matters advanced as to why relocating with her children would be more difficult than relocating alone. In circumstances where the Tribunal’s findings and reasoning about whether the applicant could avoid a real risk of significant harm by relocating within Malaysia, with her children, are silent on the only two matters raised by the applicant as to why she would come to the attention of her husband and brothers if she relocated with her children, I cannot conclude that the Tribunal actively and intellectually engaged with the applicant’s evidence regarding relocation with her children.
The Tribunal’s consideration did not need to be detailed. For example, it might have been open to the Tribunal to reject the applicant’s claim that her location would come to the attention of her brothers and husband if she asked someone to help her move because of the lack of detail provided as to how this would lead to her location being known. Likewise, it might have been open to the Tribunal to reject the applicant’s claim that enrolling her children in school would lead to her location becoming known because she had not provided any detail about how her brothers or husband would be able to access any school enrolment records. However, merely summarising the relevant evidence at [24(c)] of its reasons and then expressing a conclusion at [41] without any evident evaluation of the evidence was not sufficient.
Effect of Tribunal’s finding that it would not be unreasonable for the applicant to relocate within Malaysia without her children
The reasons above, do not, however, resolve this ground because it is also necessary to consider the second of the Tribunal’s findings at [41] that it would not be unreasonable for the applicant to relocate within Malaysia without her children. If that finding was reached without error, it will be necessary to consider whether that finding subsumes the Tribunal’s finding considered above that the applicant could safely relocate with her children.
In addressing this ground, and acknowledging the very different approaches taken by the parties in their further submissions, it is worth noting that the consideration of whether a person can reasonably relocate to an area within the receiving country where they will not face a real risk of significant harm involves two steps:
(a)considering whether there exists within the receiving country a place (or places) where the applicant will not face a real risk of significant harm; and
(b)if such a place exists, considering whether it would be reasonable, in the sense of practicable, for the applicant to relocate to that place.
These two steps were summarised by Kenny J in MZACX v Minister for Immigration and Border Protection (2016) 161 ALD 73; [2016] FCA 1212, where her Honour said at [35]:
In considering the possibility of relocation within a visa applicant’s country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk, then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is “reasonable”, in the sense of “practicable”, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place.
The applicant’s further submissions focus on the first of these two steps and the Minister’s further submissions focus on the second of the two steps. In my view, the Tribunal’s finding that it would be reasonable for the applicant to relocate without her children, for the reasons it gave, clearly amounts to a finding, or part of a finding, for the purposes of the second step. The applicant does not appear to challenge that finding insofar as it relates to the second step of the relocation test, but rather submits that the second step does not arise at all because the Tribunal did not properly carry out the first step of the relocation test.
The critical question to be resolved in considering this part of the ground is therefore whether, in assessing whether there was a place within Malaysia to which the applicant could relocate where she would not face a real risk of significant harm, the Tribunal was only permitted to consider what the applicant would do, or whether it could proceed on the basis of what the applicant could reasonably be expected to do. Further, if the Tribunal could only lawfully proceed on the basis of what the applicant would do, did it make a finding about what the applicant would do?
I address the second of these questions first. I do not accept the Minister’s submission that the Tribunal found that the applicant would relocate without her children. The Tribunal at [41] essentially considered two alternative courses open to the applicant: relocation with her children and relocation without her children. It did not make any finding as to which course the applicant would, in fact, pursue. The use of phrases such as ‘even if’ when addressing one of these two scenarios does not, contrary to the Minister’s submission, amount to a finding that the applicant would take action in accordance with the other scenario.
The main case relied on by the applicant in support of her submission that the Tribunal must assess complementary protection in the light of what she would do is DQU16. The question considered by the High Court in DQU16 was whether the principle in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (Appellant S395) applied to an assessment of an applicant’s claims for complementary protection. The principle in Appellant S395 was summarised in the following way in DQU16 at [8] (footnotes omitted):
The principle for which Appellant S395 stands is that “a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution”. The principle “directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic” (emphasis added).
Relevantly, in DQU16 the Immigration Assessment Authority had found that the visa applicant had not been personally targeted for having sold alcohol in Iraq, he did not face a real risk of harm if returned to Iraq because he had sold alcohol previously and, if he returned to Iraq, he would not continue to sell alcohol. Thus, the appeal before the High Court arose in circumstances where the Authority had found that the visa applicant would not engage in the behaviour that was the basis for his claim to fear harm, rather than a situation where the visa applicant could be expected to behave or not behave in a particular way. The High Court considered that the sole question raised by the appeal was whether the Authority erred by failing to apply the principle in Appellant S395 in assessing complementary protection, by failing to ask why the visa applicant would not sell alcohol on his return. In the result, the High Court found that the principle in Appellant S395 does not apply to complementary protection claims.
This background is set out because in assessing the applicant’s submissions based on DQU16, it is important to bear in mind the questions the Court was considering in that case, and the context in which those questions arose.
The paragraphs of DQU16 relied on by the applicant are [18]-[19], which read (emphasis in original):
18.… Under s 36(2)(aa), the question is whether a person can be returned to a particular State: and the provision is formulated by reference to the consequences of a non-citizen’s removal to a particular State.
19.… The statutory question, namely whether a person can be removed to a particular State without suffering identified forms of harm, is framed by reference to the risk of a non-citizen suffering significant and specified harm as a necessary and foreseeable consequence of removal to a receiving country. Assessing the risk that a non-citizen will suffer significant harm within s 36(2A) necessarily involves an assessment of the individual circumstances of the non-citizen and the basis on which the non-citizen claims that those circumstances give rise to the requisite degree of risk as a necessary and foreseeable consequence of removal to a receiving country.
However, those paragraphs on their own do not answer the question of whether, in assessing complementary protection, the decision-maker can only consider what an applicant would do and not what they could be expected to do. The High Court’s emphasis on the consequences of removal, upon which the applicant relies in her submissions, does not dictate how a decision-maker is to identify those consequences.
The High Court confirmed in DQU16 that there are three elements that must be satisfied for prospective harm to satisfy s 36(2)(aa) of the Migration Act:
(1)‘the decision-maker must have substantial grounds for believing’;
(2)‘that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’;
(3)‘there is a real risk that the non-citizen will suffer significant harm’: DQU16 at [13].
In his oral submissions, Counsel for the applicant focused on the second of these elements and on the words ‘necessary and foreseeable consequence’. Counsel for the applicant submitted:
So that’s the task – what will happen as a necessary and foreseeable consequence of removal from Australia and … is there a real risk of significant harm flowing from those events. The applicant in this case gave evidence of what she will do, and according to her, what she will do is seek to extract her children from her husband’s care, and as a consequence of doing so, she says she faces a real risk of significant harm … from her husband and her brothers because doing so would alert them to her whereabouts.
The phrase ‘necessary and foreseeable consequence’ was considered by Judge Mercuri (as her Honour then was) in EJC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3171 (EJC18). Neither party referred to this judgment in their submissions. In EJC18, the applicant claimed to fear harm as a result of his intention to pursue a land dispute. The Tribunal accepted that the applicant would face a real risk of significant harm if he pursued the land dispute, as he intended to do, but found that pursuing the land dispute was a choice that he was able to make, and there was therefore not a ‘necessary and foreseeable’ consequence of his being returned to the receiving country. On judicial review, the applicants submitted that, in considering what constitutes a necessary and foreseeable consequence of a person’s return, regard must be had to what the person is likely to do on their return. In rejecting this submission, Judge Mercuri said at [56], [62] and [63] (footnotes omitted):
56.This analysis, however, does not give due regard to the word ‘necessary’ in section 36(2)(aa). Whilst such harm is clearly foreseeable, the question is whether it is a necessary, as well as foreseeable, consequence of return, in circumstances where there is no compulsion on the applicants to engage in that conduct on their return.
…
62.… I find that the Tribunal did not fall into error in concluding that if the applicants sought to pursue the property claim on their return, any harm that may follow is not a necessary and foreseeable consequence of their return.
63.If it was sufficient for the risk to arise as a foreseeable consequence of the applicants’ return, the applicants’ case would be made out. But what is required is that the risk of harm be a ‘necessary and foreseeable consequence’ of the applicant’s return. This is a higher bar than just a foreseeable consequence. The term ‘[necessary]’ connotes a sense of inevitability or as following as the next logical step in a sequence of events. The applicant’s view would give the word ‘necessary’ in section [36(2)(aa)] no work to do.
Given that DQU16 did not directly address whether an applicant would meet the requirements of s 36(2)(aa) if he or she could, as opposed to would, avoid the behaviour that would give rise to a real risk of significant harm, or otherwise modify their behaviour to avoid such a risk, nothing in DQU16 directly contradicts the reasoning of Judge Mercuri in EJC18.
I have considered whether any of the reasoning in DQU16 regarding modification of behaviour might indirectly lead to the requirement that, in assessing a complementary protection claim, the decision-maker may only consider what an applicant would do and not what they could be expected to do. Some of the Court’s comments at [21] to [25] of DQU16 may be relevant in this regard. In those paragraphs, the High Court said (emphasis added; footnotes omitted):
21.In relation to the harm at which s 36(2)(aa) is directed, two further aspects of the provision are of particular significance. The definition of “significant harm” in s 36(2A) is not formulated by reference to a person’s inherent or immutable beliefs, attributes, characteristics or membership of a particular group. And assessment of the risk of that harm under s 36(2)(aa) does not involve finding a nexus between the harm feared by the non-citizen and those beliefs, attributes or characteristics, or the noncitizen’s membership of a particular group. The provision only requires an assessment of the “necessary and foreseeable consequence[s]” of a person’s return to a receiving country. It is a corollary of the statutory test in s 36(2)(aa) being framed in those terms that where a risk of “significant harm” can be avoided by modification of behaviour, such modification does not involve a manifestation of the very harm at which the criterion in s 36(2)(aa) is directed.
…
23.In other cases, a decision-maker may find that a non-citizen is in a position to, and would, on their return to a receiving country, modify their behaviour in a way which would avoid the relevant significant harm so that the harm would not be the necessary and foreseeable consequence of their removal to that country. In those cases, there is nothing in the text, context or purpose of s 36(2)(aa) requiring the decision-maker to consider why the non-citizen would modify their behaviour. That an applicant might modify their behaviour in response to the possibility of significant harm as defined in s 36(2A) does not itself involve a realisation of the harm at which s 36(2)(aa) is directed. The underlying motivation of the applicant is not required to be considered under s 36(2)(aa). It is simply the case that, if, by modification of behaviour, a person will avoid a risk of harm of the kind at which s 36(2)(aa) is directed, it cannot be said to be a “necessary and foreseeable consequence” of the person’s refoulement to that place that they will be at risk of that kind of harm.
…
25.The decision in Appellant S395, therefore, does not apply to a claim for complementary protection. The rationale for the principle in Appellant S395 does not, and cannot, apply to the inquiry under s 36(2)(aa), which requires an assessment of the “necessary and foreseeable consequence[s]” of a person returning to a receiving country. The decision is not directed at a prohibition on refoulement to the kinds of harm contemplated in the [International Covenant on Civil and Political Rights] and the [Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]. Indeed, as Gageler J recognised in Minister for Immigration and Border Protection v SZSCA [(2014) 254 CLR 317; [2014] HCA 45], in the course of warning against the extension of the principle in Appellant S395 “beyond its rationale”, the principal has no application to a person who would or could be expected to hide or change their behaviour when that behaviour is not a manifestation of a Convention characteristic — a warning now given effect by s 5J(3), which expressly requires a decision-maker to have regard to the prospect of behavioural modifications which are unrelated to Convention characteristics.
On balance, I do not consider that these comments are inconsistent with the reasoning of Judge Mercuri in ECJ18 or otherwise represent a position where the Tribunal must, in every case, base its complementary protection findings on what an applicant would do, rather than what an applicant could reasonably be expected to do. The strongest support for the applicant’s position comes from [23] of the High Court’s reasons in DQU16, in particular the words ‘and would’ in the emphasised portion of the first sentence. However, in the light of the particular facts of the case before the High Court, the use of those words does not, in my view, appear to convey any intention to extend, or not to extend, the same reasoning to a situation where the applicant could reasonably be expected to change their behaviour, or intended behaviour, to avoid a real risk of significant harm.
In circumstances where I have found that the High Court judgment in DQU16 does not directly or indirectly overturn the reasoning in ECJ18, it is appropriate that I follow the reasoning in ECJ18 unless I consider it to be plainly wrong. I do not consider the reasoning in ECJ18 to be plainly wrong and I agree with that reasoning.
I acknowledge that in the present case, unlike in ECJ18, the Tribunal did not expressly find that, given the applicant could reasonably relocate without extracting her children from her husband’s care, any risk of significant harm was not the necessary and foreseeable consequence of her removal from Australia. However, on the construction of the Tribunal reasons that I have preferred, namely, that the Tribunal found that if the applicant relocated without her children, she would not face a real risk of significant harm (at [39] and in the first sentence of [41] of the Tribunal decision), and that it would be reasonable for the applicant to relocate without her children (in the second half of [41] of the Tribunal decision), the Tribunal has, in effect, found that the risk of significant harm the applicant fears would be avoided if she relocates without her children, which is an action that it would be reasonable for her to take. It is implicit in this that the risk of significant harm would not be a necessary consequence of her removal from Australia.
I have considered the cases referred to in the Minister’s further submissions regarding reasonableness of relocation without family members, but those cases have no direct bearing on the resolution of the ground advanced by the applicant. The Minister relies on BWB16 and BXF17 to support the proposition that the Tribunal is not required to uncritically accept an applicant’s submission about the circumstances that they would be prepared to relocate in. Rather, the task of the Tribunal is to consider the submissions put forward by an applicant about whether they could relocate and to decide, based on the circumstances of the case, if relocation would be reasonable. Those propositions are not disputed and do not assist in the resolution of the particular issues raised by this case.
The upshot is that I find that there are no jurisdictional errors in:
(a)the Tribunal’s finding evident in [39] and the first sentence of [41] to the effect that the applicant would not face a real risk of significant harm if she relocated to another area in Malaysia without her children; and
(b)the Tribunal’s finding in the second half of [41] that it would be reasonable for the applicant to relocate without her children.
I accept the Minister’s submission that the Tribunal’s finding in the first half of [41] that there was only a remote risk that the applicant would be located by her husband and brothers if she relocated with her children, which I have found is affected by error, is subsumed into findings of greater generality in relation to the Tribunal’s assessment of the applicant’s complementary assessment claim and the application of s 36(2B)(a) of the Migration Act.
The applicant’s sole ground of application is therefore not established.
CONCLUSION
Given that I have found that the applicant has not established that the Tribunal decision is affected by jurisdictional error, it follows that the judicial review application must be dismissed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 24 May 2023
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