DBB18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1365
•12 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DBB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1365
File number(s): MLG 1646 of 2018 Judgment of: JUDGE CORBETT Date of judgment: 12 December 2024 Catchwords: MIGRATION – application for judicial review – protection visa – whether well-founded fear of harm – complementary protection – whether Tribunal considered gender in context of claims –whether failure to apply proper test for relocation – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5J(1)(a), 5J(4)(b), 5K, 5L, 36, 36(2)(a), 36(2)(aa), 36(2B), 423A, 499
Migration Regulations 1994 (Cth), Sch 2
Cases cited: AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106
Attorney-General (NSW) v Quin (1986) 162 CLR 24
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
Nabe v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of last submission/s: 19 November 2024 Date of hearing: 19 November 2024 Place: Melbourne Solicitor for the Applicant Applicant appeared in person Solicitor the Respondents Ms S Griffiths-Mark, Clayton Utz ORDERS
MLG 1646 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DBB18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTUAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent be amended to Administrative Review Tribunal.
3.The application for judicial review filed 12 June 2018 be dismissed.
4.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $7,370.00.
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 CORBETT
The applicant seeks judicial review of a decision of the second respondent (Tribunal) made 24 May 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa (visa).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R1”.
BACKGROUND
The applicant is a citizen of Malaysia. The applicant first arrived in Australia on 6 June 2016 on an Electronic Travel Authority tourist visa (CB 25).
On 31 August 2016 the applicant applied for the visa (CB 1-54).
The applicant sought protection because she claimed that (CB 38):
(a)she was facing sexual harassment from her cousin, who took naked photographs of her while she was in the bath;
(b)her cousin forced her to have sex with him and threatened to publish the photographs if she refused;
(c)she was stressed and almost tried to commit suicide;
(d)she wanted to protect her dignity as a woman;
(e)she feared that she would be forced to be a sexual slave; and
(f)she wanted to have a normal life in Australia.
On 25 January 2017, a delegate of the Minister refused to grant the visa. The delegate was not satisfied that there was a real chance that if the applicant returned to Malaysia, the applicant would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Migration Act 1958 (Cth) (Act). The delegate was also not satisfied that if the applicant returned to Malaysia that there was a real risk that the applicant will suffer significant harm (CB 60-72).
On 27 January 2017, the applicant filed an application with the Tribunal to review the delegate’s decision (CB 73-4).
On 3 April 2018, the Tribunal invited the applicant to a hearing to be held on 3 May 2018 and to give evidence and present arguments relating to her application for review (CB 88–9).
On 30 April 2018, the applicant sent a statutory declaration to the Tribunal in which she sought to correct her application for the visa and clarify various aspects of her claim for protection (CB 103-5).
On 2 May 2018, there was a hearing before the Tribunal at which the applicant appeared in person with the assistance of a Malay interpreter (CB 108-111).
On 24 May 2018, the Tribunal affirmed the delegate’s decision not to grant the visa and delivered written reasons to the applicant (CB 118 -132) (Decision).
TRIBUNAL DECISION
In the Decision, the Tribunal considered the criteria for the visa in s 36 of the Act and Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). The Tribunal referred to the criteria in s 36(2)(a) of the Act and considered whether the applicant was a person to whom Australia has protection obligations under the refugee criterion (CB 119 [3]-[7]).
The Tribunal “took account” of the policy guidelines prepared by the Department of Immigration (PAM 3) in accordance with Ministerial Direction No. 56 under s 499 of the Act. It also considered country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) (CB 119-20 [8]).
The Tribunal considered the claims for protection and evidence of the applicant and compared the applicant’s evidence at the hearing, the statutory declaration provided on 30 April 2018 and the original application for the visa (CB 120-4 [9]-[26]). The Tribunal noted that there were inconsistencies between the application, the statutory declaration and the applicant’s oral evidence under oath at the hearing. The Tribunal preferred the evidence given under oath at the hearing (CB 124 [27]). It was that evidence that identified the actual claims for protection and the reasons for those claims. It was from that evidence that the Tribunal proceeded to consider the merits of the claim for protection. No adverse inferences were drawn from the inconsistencies in the applicant’s previous claims for protection (although they could have been under s 423A of the Act), and the Tribunal gave the applicant the “benefit of the doubt”. The Tribunal considered and gave weight to the fears and concerns expressed by the applicant on oath at the hearing by the applicant (CB 124 [26]-[27], 125-6 [33]-[38]).
On balance, the Tribunal was not satisfied that the applicant’s fear of persecution involved serious harm as required by s 5J(4)(b) of the Act. There was no threat to life, liberty, significant economic hardship, denial of basic services, or livelihood that threatened the applicant’s capacity to subsist (CB 127-8 [39]).
However, the Tribunal did conclude that the applicant held fear of serious harm from her brother should she return to Malaysia and that the applicant was the subject of extortion attempts by her brother (CB 127 [40]-[41]). The Tribunal also accepted that the applicant experienced pressure from her family on at least two occasions to marry against her wishes (CB 124 [28]). The Tribunal also accepted the applicant’s evidence that two of her brothers had substance abuse issues (CB 125 [31]).
The Tribunal then considered relocation internally within Malaysia and considered it to be a viable option for the applicant (CB 127 [42]–[43]). The Tribunal found that the applicant had the personal and emotional capacity to relocate and had done so before (CB 128 [45]). The Tribunal concluded that the risk of harm to the applicant caused by her brother’s previous conduct was remote and subsequently found that the applicant’s fear of persecution was not well founded (CB 128 [47]-[48]).
The Tribunal considered whether the applicant was entitled to complimentary protection under s 36(2)(aa) of the Act. The Tribunal found, based on the applicant’s sworn evidence, that the harm the applicant feared from her parents was not serious harm because there was no real risk that the applicant would be forced into an arranged marriage or to abandon her current relationship (CB 128 [53]). Nevertheless, the Tribunal found that the harm feared by the applicant from her parents and one of her brothers, when considered cumulatively, was “significant harm” within the meaning of the Act (CB 129 [54]). However, the Tribunal then found that the risk of harm was localised, and that the applicant had the capacity to relocate and live apart from her family in Malaysia and that it was reasonable for her to do so. Accordingly, there was no real risk of significant harm to the applicant should the applicant be returned to Malaysia (s 36(2B) of the Act) (CB 129 [55]).
The Tribunal concluded that there was no real risk that the applicant would suffer significant harm if the applicant was removed from Australia to Malaysia (CB 129 [56]). The decision of the delegate was affirmed.
PROCEEDINGS IN THIS COURT
The application for judicial review identified two grounds of review with particulars (CB 133-8). The grounds were as follows (CB 137-8) (verbatim):
Grounds of application
1. The Administrative Appeals Tribunal (the Tribunal) erred by failing to take into
account an integer of the applicant's claims, namely her claim to fear harm on account of her gender.Particulars
1.1 The applicant advanced claims before the Tribunal by way of a brief statutory declaration dated 30 April 2018 as well as oral evidence given at a hearing (see para [27] of decision record);
1.2 The applicant's statutory declaration provided details of:
1.2.1 Sexual advances and coercion by her cousin;
1.2.2 Sexual assault by her step-brother;
1.2.3 Year of domestic abuse by her family;
1.2.4 Coerced marriages arranged by her parents;
1.2.5 Ongoing financial pressure to support her family
In conclusion the applicant stated: 'I came to Australia to escape years of abuse, and am seeking protection from the Australian government so that I can finally live a life free from harm, with the freedom to choose how to live my life. ' (see para [11])
1.3 The Tribunal acknowledged that the applicant was unrepresented in relation to the review and further that she had been assisted by an unregistered 'agent' at the primary stage who had misrepresented her claims for protection initially (para [26]);
1.4 In the circumstances, the evidence advanced by the applicant gave rise to a substantial, clearly articulated claim to fear harm on return to Malaysia by virtue of her gender as a woman (per Dranichnikov vMinister for Immigration and Multicultural Affairs [2003] HCA 26)
1.5 The Tribunal failed to identify and then deal with this clearly articulated claim, and accordingly fell into error.
2. The Tribunal failed to have regard to an integer of the applicant's claims, namely the impact of her mental health on internal relocation.
Particulars
2.1 The applicant claimed that, on account of her past experiences in Malaysia, she had in the past attempted to commit suicide (see para [11]);
2.2 The Tribunal accepted that the applicant's past experiences had led her to feel depressed and contemplate suicide (see para [28]);
2.3 Having found that the applicant faced a real risk of significant harm in relation to her home region in Malaysia (para [55]), the Tribunal was then obligated to consider the possibility of internal relocation in Malaysia, and in so doing consider the reasonableness of relocation in all of the applicant's particular circumstances (per SZATV v Minister for Immigrationand Citizenship [2007] HCA 40) involving 'a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location' (per MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [51]);
2.4 The Tribunal failed to engage in a detailed assessment of the relocation in the applicant's particular circumstances, and in particular failed to have regard to the impact of her past and potential future mental condition on return to Malaysia.
The application for judicial review was supported by an affidavit of the applicant affirmed 4 June 2018 that annexed a copy of the Decision.
On 4 September 2019, a Registrar of this Court ordered that the applicant file and serve any amended application with proper particulars, any supplementary Court Book and written submissions 28 days before the date fixed for the final hearing. The final hearing was later fixed for 19 November 2024 at Melbourne. The applicant did not file or serve any amended application, further evidence or written submissions. The Minister prepared a Court Book, an outline of submissions and a list of authorities.
At the hearing on 19 November 2024, the applicant appeared in person assisted by an interpreter fluent in the English and Malay languages. Ms Griffiths-Mark, solicitor, appeared for the Minister.
At the hearing the applicant confirmed receipt of the Court Book and the Minister’s outline of submissions.
The applicant also sought to tender a statutory declaration from her aunt that referred to two arranged marriages forced upon the applicant by her parents, together with some photographs. The applicant also sought to rely on a character reference from her employer. The statutory declaration dated 7 November 2024, photographs and reference were received as evidence and tendered under objection as to relevance by the Minister and marked exhibit “A1”.
APPLICANT’S SUBMISSIONS
Noting that the applicant was unrepresented, the Court gave the applicant an opportunity to elaborate on, and further articulate, the grounds of review and to inform the Court of the basis on which the Tribunal fell into jurisdictional error.
To assist the applicant the Court explained that this Court can only turn its attention to the issue of “jurisdictional error” in the Tribunal’s decision.
It was also explained that this Court cannot review the merits of the Tribunal’s decision to grant the visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang)). The Court explained that it could not grant the applicant a visa but could send the application back to the Tribunal for reconsideration if there was a significant legal or factual error that meant the Tribunal acted contrary to law.
The applicant explained that she would like to stay in Australia and that she thought that the Tribunal did make a mistake. The applicant submitted that the Tribunal did not understand that her parents had arranged marriages for her in the past and she feared that they would do so again. That was why the applicant obtained the statutory declaration from her aunt (Exhibit “A1”). The applicant submitted that she did not believe her voice would be heard in Malaysia or that she would be permitted to make her own decisions about her future. That was not the case in Australia.
The Court then took the applicant to the two grounds of review in the application for judicial review (CB 137-8). The applicant confirmed that she could read the English language in the application and the grounds for review. When asked why she said that the Tribunal did not consider her gender in the Decision, the applicant replied, “I am not sure”. When asked about ground two and the failure by the Tribunal to consider her mental health, she said that if she was forced to relocate to Malaysia the “same things as before would happen to her again”. The applicant said she was still traumatised by the conduct of her family and fearful of her past life in Malaysia. The applicant was otherwise unable to assist the Court regarding the grounds of review.
MINISTER’S SUBMISSIONS
Ms Griffiths-Mark relied on the Minister’s outline of submissions filed 4 November 2024 and the list of authorities filed 19 November 2024. It was submitted that the Tribunal considered all the articulated claims made by the applicant in her application for the visa, her statutory declaration made 30 April 2018 and from the evidence that she gave to the Tribunal at the hearing on 2 May 2018.
It was submitted that there was no clearly articulated claim made by the applicant that the applicant would be persecuted or suffer significant harm based on her gender but that her gender was considered by the Tribunal when addressing each of her articulated claims based upon sexual assault, sexual harassment, forced marriage, extortion and domestic abuse.
It was submitted that the Tribunal did consider gender in the context of the clearly articulated claims and there was no error or failure to address the statutory task in the reasoning of the Tribunal as recorded in the Decision.
Ms Griffith-Mark referred to the High Court decision in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (Dranichnikov) that was referred to in the application for judicial review. It was submitted that the facts in Dranichnikov could be distinguished from the facts in this application. In Dranichnikov, the appellant was successful because the Tribunal misstated and failed to deal with the case presented to it. The Tribunal failed to consider whether the appellant would be persecuted as a member of a special group, not just of businesspeople but of businesspeople in public protest about state sanctioned corruption including violence. In this application, the Tribunal considered the specific claims articulated by the applicant, which were gender related and dealt with each of those claims and then collectively. There was no failure to address any specific claim raised as to persecution or significant harm and no failure to consider a relevant integer of any claim.
In relation to ground two, the Minister submitted that the ground was factually incorrect. It was submitted that the evidence of the applicant at the hearing before the Tribunal was that “she at no stage took any step to attempt suicide” and previous assertions to that effect were incorrect (CB 124-5 [28]). The Tribunal acknowledged that at times the applicant had been depressed by the prospect of arranged marriage and accepted that she may have had thoughts of suicide but accepted that the applicant had removed herself from the marriages arranged for her (CB 125 [28]).
The Minister also submitted that the Tribunal did consider the applicant’s mental health and wellbeing in paragraphs [33], [55] and [56] of the Decision (CB 150-1, 154). Ultimately, the applicant’s mental health and wellbeing was a matter to which the Tribunal gave weight in reaching the conclusion that relocation in Malaysia would not cause her to suffer persecution or harm and that she would be able and willing to live in locations remote from her immediate family (CB 128 [45]).
There was no clear claim made that the applicant would suffer harm to her mental health, nor did it clearly arise on the face of the material before the Tribunal. To the contrary, the applicant’s evidence to the Tribunal was that the applicant had previously successfully lived away from her family in Malaysia (CB 123 [19], 127 [47]).
Finally, the solicitor for the Minister also addressed what was described as an unarticulated ground of review which was whether the Tribunal applied the correct test in determining whether it was reasonable, in the sense of practicable, to expect the applicant to relocate to a particular part of a receiving country (see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (SZATV) and AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106 at [27] (AHK16)). This ground emerges from the particulars to ground two, Particular 2.3, in the application for judicial review (CB 137-8).
It was submitted that the Tribunal did not fall into error and correctly applied the test for relocation consistent with the reasoning of the Full Court in AHK16. It was submitted that the Tribunal engaged in a thorough assessment of the applicant’s evidence and her capacity to return to Malaysia and relocate. The Tribunal did assess whether it was reasonable, in the sense of practicable, for the applicant to return to Sabah (where she had lived previously) and not to Tawau where her immediate family lived. The Tribunal asked itself the correct question and did not fall into error in that regard (see MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [49]–[55] per Mortimer J (MZANX)).
REPLY
The applicant was invited to reply to the Minister’s submissions and make any further submissions that may have occurred to her to support her application for review. The applicant submitted that she was still traumatised by her family and fears another arranged marriage if she was to return to Malaysia. The applicant also told the Court that her current employer was very supportive and willing to employ her if a visa was granted.
CONSIDERATION
In AHK16, the Full Court of the Federal Court of Australia referred to the general principle of law where a decision-maker fails to consider an integer of a claim when considering an application for a Protection visa. The Court said at [28] per Mortimer, Moshinsky and Thawley JJ:
…a decision-maker [will not] undertake the statutory task if the decision-maker fails to consider an integer of a claim to fear persecution, fails to consider a claim to fear persecution, or fails to consider a critical fact in a claim to fear persecution: see for example Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; 194 ALR 244 at 259 [42] (Allsop J, Spender J agreeing); Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24]-[25] (Gummow and Callinan JJ) (Hayne J agreeing at [95]); NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58]-[61], [63] (Black CJ, French and Selway JJ); Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [51]-[52].
More generally, the Full Court of the Federal Court of Australia in Nabe v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263 said at [55] per Black CJ, French and Selway JJ:
Where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALJR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act.
The Court also observed at [58]:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it - Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” - articulated by an applicant if evidence and material which it accepts raise a case not articulated - Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant - Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it - SDAQ v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 120: (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
In Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [23] the High Court said:
General principles governing the limited role of the courts in reviewing administrative error have long been identified. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions" is not a sufficient reason for overturning a judicial decision upon a review. Further, Brennan J said in Attorney-General (NSW) v Quin:
"The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
In Wu Shan Liang at 272 the High Court per Brennan CJ, Toohey, McHugh and GummowJJ (also citing Brennan J in Attorney-General (NSW) v Quin (1986) 162 CLR 24) said:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (38). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (39):
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
The review of the Decision must also be undertaken in the light of the basis upon which the application was made, not upon an entirely different basis for reasons that may occur at some later stage to the applicant or others assisting the applicant (see Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] per Gleeson CJ).
It is with these principles and observations in mind that this Court must review the Decision for jurisdictional error.
GROUND ONE
The Tribunal was not clearly asked to consider as a separate claim whether the applicant’s gender as a woman meant that she feared persecution or significant harm within the meaning of s 36 of the Act. Section 5J of the Act does not list gender as an integer of the meaning of “well-founded fear of persecution” nor as a matter of construction could it be said that gender constitutes membership of a particular social group (the meaning of which is also dealt with in ss 5K and 5L of the Act). However, the Tribunal did consider the articulated claims that the applicant was the victim of sexual abuse, assault, harassment, coercion, intimidation and control by members of her family. All of these claims were considered because of and with consideration toward the applicant’s gender. The Tribunal also considered the applicant’s fear of an arranged marriage which was based in part on gender and in part on parental control (CB 147-8 [18]-[21]). The Tribunal was satisfied that the applicant could live independently and free of parental disapproval and control (CB 123 [21]).
In the application for the visa, the applicant referred to the need to protect her dignity as a woman (CB 36). However, the claims made in the application for the visa were abandoned by the applicant in her statutory declaration and at the hearing before the Tribunal, when the applicant conceded that the application was not prepared by her and was inaccurate and concocted (CB 103-5, 121 [12]). Therefore, it could not be said that the applicant expressly or stated with clarity gender as a specific claim.
Further, a claim based solely on gender was not “squarely” apparent on the face of the material before the Tribunal without constructive or creative activity by the Tribunal. The Tribunal correctly sought to address the articulated claims which were considered sensibly and sensitively with consideration of the applicant’s gender. When viewed in the context in which the application was made (including the inconsistencies in the applicant’s previous claims and evidence) there was no failure to consider a claim or an integer of a claim that was clearly articulated or squarely arising from the materials before the Tribunal. To find that the Tribunal failed to consider gender as a separate integer or claim would be to construe the reasons of the Tribunal minutely and finely with an eye keenly attuned to the perception of error. The Tribunal did consider a DFAT Country report for Malaysia regarding relocation. This included consideration of trans-gender individuals, women escaping domestic violence or Muslims wishing to marry non-Muslims (CB 152 [42]). In so doing, the Tribunal clearly considered gender inequalities in assessing the claims made by the applicant. There was no jurisdictional error of the kind identified in ground one.
GROUND TWO
The impact of the applicant’s mental health on internal relocation was also not clearly articulated nor did it arise as a separate claim from the materials before the Tribunal that was not addressed. Whilst mention of attempts of suicide and mental abuse were raised by the applicant in the application for the visa (CB 36-7), there was no evidence provided to support these assertions either before the delegate or the Tribunal. In the statutory declaration dated 30 April 2018, the applicant said that the claims in the application for the visa were incomplete and exaggerated. The applicant referred to the stress she felt following the “fall-out of the arranged marriages” but not to any other anxiety or mental health issue arising from her relationship with her estranged family (CB 104 [7]). The applicant did say in the statutory declaration that she had been the victim of mental and emotional abuse but did not specify how or why that would continue if returned and relocated in Malaysia.
In the evidence given to the Tribunal, the applicant also referred to mental and emotional abuse at the hands of her family over the years (CB 120 [3]). The Tribunal noted the content of the statutory declaration and considered the applicant’s evidence on oath (CB 120-1 [11]). The Tribunal accepted the applicant’s evidence that she at no stage took any steps to attempt suicide and that when she was younger, she felt threatened by her cousin but that she has not seen him for several years (CB 125-6 [28]-[29]). The Tribunal also acknowledged that the applicant feels a responsibility to financially support her family (including her parents) (CB 125 [30]). The Tribunal accepted from the applicant’s evidence that the applicant fears parental pressure to marry against her wishes as well as to end her current relationship. So too that at one time the applicant experienced feelings of hopelessness and thought of suicide (CB 126 [33]). However, the Tribunal found that there was no risk of harm in the foreseeable future is she was to return to Malaysia (CB 126 [34]).
The Tribunal expressly considered the applicant’s ability to live an independent life in Malaysia free from her parents control and also the applicant’s willingness and capacity to ignore the cultural pressures that she faces from her parents (CB 151 [37]). The Tribunal found that the applicant’s fear of harm did not involve serious harm as required by s 5J(4)(b) of the Act (CB 151 [39]). These matters were addressed by the Tribunal when weighing the evidence and discharging the statutory task of applying the criteria for protection in the Act.
In the absence of a clearly articulated claim that the applicant’s mental health would be significantly harmed by relocation the Tribunal did not err in the consideration of the claims made and did not fail to consider an integer of any claim made by the applicant as to the impact on her mental health in the event of relocation. There was no jurisdictional error by the Tribunal on this ground.
OTHER GROUNDS
In the particulars to the application for judicial review the applicant raised an issue of whether the Tribunal considered the “reasonableness” of relocation in “all of the applicant’s particular circumstances” (Particular 2.3 CB 137-8). Reference was made to SZTAV and MZANX.
The solicitor for the Minister addressed this part of the application for judicial review in the outline of submissions.
In AHK16 at [3] per Mortimer, Moshinsky and Thawley JJ, the Court said:
The assessment of whether a person can return to one or more parts of her or his country of nationality is undertaken in relation to the causal aspect of the definition of refugee in Art 1A of the Refugees Convention: namely, whether a person is outside her or his country of nationality owing to (in the sense of because of) a well-founded fear of persecution for a Convention reason: see generally SZATV at 25-26 [19], referring to the reasoning of Lord Bingham in Januzi v Secretary of State for Home Department [2006] UKHL 5; 2 AC 426. As the extract from Januzi at [19] of SZATV, and the other authorities to which we refer establish, there are two components to this assessment. The first concerns an assessment of the risk of harm, and the level of harm, which a person might face in those parts of her or his country to which she or he might be expected to return; and the second concerns whether it is reasonable, in the sense of practicable, to expect a person to return to a particular place if it has been assessed as one where she or he does not have a well-founded fear of persecution.
In the Decision, the Tribunal addressed both aspects of the test. First, the risk of harm (and the level of harm) which the applicant might face in those parts of the receiving country to which the applicant may be expected to return and then secondly, whether it was reasonable, in the sense of practicable to expect the applicant to return. The Tribunal did this and considered the several kinds of harm feared by the applicant from her family members and then the evidence of the applicant of her move to Sabah to study nursing and live independently (CB 150-1 [33]-[36]). The Tribunal also considered country information and the applicant’s personal circumstances and concluded that it was reasonable for the applicant to return to her previous area of residence (which is more than eight hours away from her family home) or to any other parts of Malaysia as she sees fit (CB 152 [42]-[43]). The Tribunal considered that the risk of harm from her brother was localised in the family home area. The Tribunal summarised the reasons for concluding that relocation was a reasonable option, and it was implicit in that chain of reasoning that it was practicable for the applicant to do so (CB 153 [45]). There was no jurisdictional error by the Tribunal or failure to apply the proper test when considering relocation.
Noting that the applicant appeared before this Court without legal assistance, the Court also scrutinised the Decision for jurisdictional error after considering the materials in the Court Book and the applicant’s oral submissions (see MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [58], [77], [100], and [112]-[114]). No discernible jurisdictional error could be identified.
CONCLUSION
The applicant has not established that there was a jurisdictional error by the Tribunal in the Decision for the grounds identified in the application for judicial review filed 12 June 2018 or on any other basis. The application for judicial review is dismissed.
At the conclusion of the hearing on 25 September 2024, the solicitor for the Minister sought the Minister’s legal costs of and incidental to the proceeding in the sum of $7,370.00 which are fair and reasonable in this case.
The Minister also sought to amend the name of the first respondent to Minister for Immigration and Multicultural Affairs and to amend the title to the proceeding accordingly.
Further, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal
ORDERS
The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
The name of the second respondent be amended to Administrative Review Tribunal.
The application for judicial review filed 12 June 2018 be dismissed.
The applicant pay the first respondent’s costs and disbursements of an incidental to the proceeding fixed in the sum of $7,370.00.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 12 December 2024
0
20
2