DBR17 v Minister for Immigration

[2018] FCCA 1581

FEDERAL CIRCUIT COURT OF AUSTRALIA

DBR17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1581

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:
Migration Act 1958 (Cth), ss.5H, 5J, 36, 351
Federal Circuit Court Rules 2001 (Cth)

Applicant: DBR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2160 of 2017

Judgment of: Judge Driver

Hearing date: 15 June 2018

Delivered at: Sydney

Delivered on: 15 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr C Robertson of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,520.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2160 of 2017

DBR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 14 June 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are dealt with in the Minister’s outline of submissions filed on 6 June 2018. 

3. The applicant is a female citizen of Malaysia born 11 March 1989 who entered Australia on 25 June 2016 as the holder of an electronic travel authority (class UD) (subclass 601) visa.[1] 

   [1] Court Book (CB) 60

4. The applicant applied for a protection (class XA) (subclass 866) visa (protection visa) on 21 September 2016.[2]  In summary, the applicant claimed that:

   a)she left Malaysia because she was forced to marry a man that her family wanted her to marry; 

   b)her family “forced her to be prepared for the marriage and she had decided to just leave the house”;

   c)if she did return to Malaysia her family would force her to marry the unknown man;

   d)she did not move to another part of the country because she had two brothers watching her moves;

   e)her parents will beat her up and force her to marry the man of their choice;

   f)the police cannot help her because it is a family matter; and

   g)she cannot relocate now but may be able to in a few years when she can stand on her own feet and support herself.[3]

   [2] CB 1

   [3] CB 36-38

5. On 1 December 2016 the delegate refused the application for a protection visa on the basis that:

   a)the applicant did not meet the refugee criteria defined by s.5H(1) of the Migration Act 1958 (Cth) (Migration Act) and therefore did not satisfy s.36(2)(a) of the Migration Act; and

   b)there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk the applicant would suffer harm and the applicant was therefore not a person of whom Australia owed protection obligations under s.36(2)(aa) of the Migration Act:

   i)the delegate was satisfied that the applicant could obtain, from an authority of the country, protection such that there not be a real risk that the applicant would suffer significant harm.[4]

   [4] CB 60-76

6. On 28 December 2016 the applicant applied to the Tribunal for review of the delegate’s decision.[5]

   [5] CB 77

7. On 5 June 2017 the applicant appeared before the Tribunal for a hearing to give evidence and present arguments.  On 14 June 2017 the Tribunal affirmed the decision under review.[6]

   [6] CB 95

The decision of the Tribunal

1. With regard to the refugee criterion, the applicant confirmed to the Tribunal that she feared harm from her family as they wanted to force her to marry a man she did not want to marry, and not for any other reason.[7]

   [7] [21]

2. On this basis, the Tribunal was not satisfied the applicant had a well-founded fear for any of the reasons contained within s.5J(a) of the Migration Act, and the applicant therefore did not meet the definition of a refugee under s.5H of the Migration Act.[8] As such the applicant did not meet the criterion under s.36(2)(a) of the Migration Act.[9] 

   [8] [23]

   [9] [45]

3. The Tribunal found that the applicant’s evidence was not credible when discussing her claims that her parents and brothers would have harmed her because she refused to enter into a forced marriage.  In particular, the Tribunal did not find her to be a credible witness when discussing how an observant religious Catholic family would object to her relationship with a Catholic man and want to force her to marry someone chosen by her relatives.[10]

   [10] [37]

4. The Tribunal had regard to the evidence from a witness called by the applicant.  It noted that the witness repeated much of the claims made in the original application, however having listened to the applicant’s evidence, the Tribunal gave the witness’ evidence no weight.[11]

   [11] [38]

5. The Tribunal also did not find it credible that, having lived for five years independently in Kuala Lumpur, the applicant would live for four years with a family that she claimed constantly cursed her and mentally tortured her.  Further, the Tribunal noted that in the Form C the applicant wrote that she was living in Australia with the financial support of her family.[12]

   [12] [37]

6. The Tribunal accepted the applicant was from an observant Catholic family,[13] that her mother was from a Hindu family and had converted to Catholicism,[14] that the applicant lived in Kuala Lumpur and entered into a long-term relationship with a Catholic man,[15] and that it was plausible the applicant’s family wished to see her married.[16]

   [13] [39]

   [14] [40]

   [15] [41]

   [16] [42]

7. Conversely, the Tribunal did not accept that her Catholic family would have taken her to a Hindu temple in an attempt to convince her to marry one of her family’s relatives,[17] that the applicant’s family would be opposed to her relationship with a Catholic man or that her brother had threatened to kill the applicant’s boyfriend and his family,[18] or that the applicant’s family had or would inflict significant harm on the applicant because she refused to marry someone not of her own choosing.[19]  

   [17] [40]

   [18] [41]

   [19] [43]

8. On the basis of the information before it, including country information, and its concerns over the applicant’s evidence, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Malaysia, the applicant will be at real risk of significant harm.[20] 

   [20] [44]

9. As such, the applicant did not meet the complementary protection criterion under s.36(2)(aa) of the Migration Act.

The present proceedings

1. These proceedings began with a show cause application filed on 11 July 2017.  There are four grounds in that application, on which the applicant continues to rely:

   1.AAT fails to consider my claim fairly.

   2.AAT did not consider my case properly according to the Migration law in Australia.

   3.I will suffer harm if I go back to my country.

   4.The AAT fail to consider for complementary protection if I am sent back it would amount to ‘significant harm’ or ‘serious harm’ of the Migration Act and thereby committed jurisdictional error and failed to consider complementary protection.

2. I have before me as evidence the applicant’s short affidavit accompanying her application and the court book filed on 6 November 2017. 

3. Only the Minister prepared written submissions in advance of today’s hearing in accordance with procedural orders made by a registrar. 

4. I invited oral submissions from the applicant this morning.  She told me that she cannot return to Malaysia because of her relationship with her partner and her wish to marry him.  She remains afraid that if she returns to Malaysia, her family will pressure her to marry someone else.  The applicant commented that the problem may improve over time. 

5. I put to the applicant that the situation might be resolved if she and her partner married.  She agreed and noted that she and her partner plan to marry once her partner’s elder sister is married.  It appears that for cultural reasons, the applicant’s partner cannot marry before his elder sister. 

6. In essence, it appears that what the applicant is now seeking is the opportunity to remain in Australia temporarily until she and her partner can marry. That is a matter which the Minister could consider pursuant to s.351 of the Migration Act if he was so minded. It is beyond the scope of this proceeding.

7. The applicant was not able to expand upon the grounds of the review advanced.  I agree with the Minister’s submissions concerning those grounds.

8. Grounds 1 and 2 are broad claims that the Tribunal erred in its consideration of the applicant's claims. In the absence of any particulars, these grounds are incapable of establishing any jurisdictional error by the Tribunal.

9. The Tribunal clearly considered the applicant’s claims, being that she feared harm from her family as they wanted her to marry a man she did not want to marry, but found that the applicant was not credible and accordingly, did not accept the applicant would suffer harm from her family at [43]. This finding was open to the Tribunal based on the evidence before it.

10. Further, in the circumstances of this case, it was open to the Tribunal to find at [23] that there was not a real chance that the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in circumstances where her claims for protection lacked a Convention nexus. 

11. Ground 3 alleges that the applicant will suffer harm if forced to go back to her country. This ground does not allege any error on the part of the Tribunal but rather seeks to cavil with the merits of the Tribunal’s decision and, as such, it must fail.

12. Ground 4 alleges the Tribunal committed jurisdictional error by failing to consider the complementary protection criteria by failing to consider if she would suffer ‘significant harm’ or ‘serious harm’ if returned to Malaysia. 

13. It is clear on the face of the decision record that the Tribunal did consider whether the applicant would face significant harm under the complementary protection regime but, due to its concerns in relation to the applicant's credibility, did not accept that the applicant's family would inflict significant harm on the applicant.[21] Furthermore, the Tribunal was not required to consider whether the applicant suffered “serious harm” under the complementary protection regime given that serious harm is harm defined for the purposes of determining whether an applicant is a refugee under s.5J, which had been previously considered by the AAT at [23].

    [21] see [43]

Conclusion

1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,520.  The applicant stated that she was not able to pay, at least for the time being.  Impecuniosity is, however, not a reason for the Court to refrain from making a costs order.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,520.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       20 June 2018