DFY19 v Minister for Immigration

[2019] FCCA 3137

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFY19 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3137

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to take into account relevant considerations and/or failed to engage in proper, genuine and realistic consideration of the same – whether the Tribunal failed to make a relevant finding – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 424AA, 476

Cases cited:

CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14

First Applicant: DFY19

Second Applicant: DFZ19

Third Applicant: DGA19

Fourth Applicant: DGB19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2217 of 2019

Judgment of: Judge Street

Hearing date: 1 November 2019

Date of Last Submission: 1 November 2019

Delivered at: Sydney

Delivered on: 1 November 2019

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Adrian Joel & Co

Solicitors for the Respondents: Ms S Given
HWL Ebsworth

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. Leave is granted to the applicants to rely upon the amended application filed on 25 October 2019.

3. The amended application is dismissed.

4. The first and second applicants pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 1 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2217 of 2019

DFY19

First Applicant

DFZ19

Second Applicant

DGA19

Third Applicant

DGB19

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 July 2019 affirming the decision of a delegate not to grant the applicants’ Protection (Class XA) (subclass 866) visas (“Protection visas”).

2. The Tribunal made its decision in respect of a joint hearing of the application of the first applicant, hereafter described as the applicant wife, for a Protection visa which included as members of the family unit the third and fourth applicants being the applicant wife’s two daughters, hereafter described as the applicant children, and an application for a Protection visa by the second applicant, hereafter described as the applicant husband, being the father of the applicant children.

3. On 22 January 2016, the applicants arrived in Australia. At that stage, the third and fourth applicants were approximately four and two years of age respectively. The applicants are Muslims of Yoruba ethnicity. On 2 May 2018, the applicant wife lodged an application for a Protection visa which included the applicant children as members of the family unit. On 26 October 2018, the applicant husband was added to the application as an applicant making his own claims for protection.

4. The applicant wife claimed to fear harm because of being ostracised by the applicant husband’s family and by her own family. The applicant husband claimed to fear of harm as a result of a conviction in Australia for a particular offence. There was also raised a fear of harm in the nature of female genital mutilation upon the applicant wife and applicant children.

5. On 12 April 2019, the delegate found that the applicants failed to meet the criteria for the grant of Protection visas. On 15 April 2019, an application for review by the Tribunal was lodged by the applicant wife which included the applicant children but not the applicant husband. On 23 April 2019, the applicant husband lodged an application for review by the Tribunal in his name only.

6. By letter dated 20 May 2019, the applicants were invited to attend a combined hearing on 20 June 2019. Prior to that hearing, submissions dated 13 June 2019 were provided on behalf of the applicants. The applicants appeared before the Tribunal on 20 June 2019 to give evidence and present arguments.

7. The Tribunal in its reasons identified the background to the applications for review and set out the relevant law. There was also an attachment to the Tribunal’s reasons forming part of the paginated decision setting out the statutory provisions referable to the review task of the Tribunal as to whether the applicants met the criteria under the 1951 Refugee Convention and in relation to complementary protection.

8. The Tribunal in its reasons identified that the applicant wife and applicant husband married in February 2011. The applicant wife indicated that her father still lives in Nigeria together with her mother and that she has one younger brother, whose country of residence is unknown. Relevantly, the applicant wife lived in the Borno State from January 2009 until September 2012 and then moved to the Abuja State from September 2012 to January 2016. The Tribunal also identified that the applicant wife undertook post-tertiary education in Nigeria and has been pursuing qualifications in relation to nursing whilst in Australia.

9. The Tribunal summarised the applicant wife’s claims and evidence. The Tribunal also referred to a supporting letter dated 30 April 2018 in relation to the applicant wife’s fears that her two children might be removed from her.

10. The applicant husband has a mother, father, two older brothers, one older sister and one younger sister all living in Nigeria. The applicant husband also completed a National Diploma in Business after leaving high school and received a Higher National Diploma in Business Administration in 2005. The applicant husband has also undertaken some nursing training and received a Diploma in Business since his arrival in Australia.

11. The applicant husband’s claims are summarised further by the Tribunal in relation to his family and the applicant wife’s family being furious with him for shaming them by marrying his wife, coming to Australia and his criminal conviction. The Tribunal expressly referred to the applicant husband’s application form in which he says that he was not in danger in Nigeria, but that he was just alienated from his family.

12. The Tribunal referred in detail to the applicants’ submissions dated 13 June 2019. The Tribunal also referred to Department of Foreign Affairs and Trade (“DFAT”) country information in relation to female genital mutilation, which included reference to country information that, although parents usually make the decision, grandmothers may be influential. The Tribunal also referred to a report in which a grandmother subjected the granddaughter to female genital mutilation against her mother’s wishes.

13. The Tribunal also referred to country information that more educated and economically independent women are more able to resist female genital mutilation than non-educated or rural women. A further reference was made in the Tribunal’s reasons that, nevertheless, relatives may mount pressure on the father or mother in order to preserve their cultural values.

14. The Tribunal identified credibility concerns in respect of the applicant wife’s claims. There were six detailed reasons provided in respect of those credibility concerns.

15. The first concerned the applicant wife’s evidence in relation to claimed physical harm suffered by her husband which was made for the first time at a very late stage in the proceedings. The Tribunal found that the applicant wife had been inconsistent as to the identity of the perpetrators of the attacks as compared with evidence provided by the applicant husband.

16. The Tribunal noted that neither the application for Protection visas, the written statement provided by the applicant wife or the applicant wife’s evidence in the interview with the delegate made any reference to the applicant husband suffering physical harm in Nigeria, including in the context of the applicant wife being specifically mentioned by the perpetrators in the attacks.

17. The Tribunal noted that, in contrast, the applicant husband in his interview with the delegate referred to three or four physical attacks on him by relatives of the applicant wife. The Tribunal referred to the applicant wife’s evidence that there had been unknown perpetrators of attacks on her husband.

18. The Tribunal put to the applicant wife its credibility concern in relation to the suggestion of multiple attacks and the failure by the applicant wife to provide this evidence at an earlier opportunity and referred to the applicant wife’s response. The Tribunal was not persuaded by the applicant wife’s explanation and identified inconsistency between the evidence of the applicant wife and the applicant husband as to the identity of the perpetrators.

19. Secondly, the Tribunal referred to the applicant wife’s claim that the applicant children faced harm as a result of the applicant husband’s family wishing to inflict female genital mutilation on the applicant children. The Tribunal raised with the applicant wife that, when the application for Protection visas was first made in May 2018, it was specifically indicated that the applicant children did not have their own fears of harm. The Tribunal noted that the claim of female genital mutilation was only made by the applicant wife for the first time at the interview with the delegate which took place on 5 December 2018.

20. The Tribunal referred to the applicant wife’s explanation while giving evidence and also the applicants’ written submissions which were provided following the hearing in relation to the claim in respect of female genital mutilation. The Tribunal, having taken those matters into account and the explanations advanced, found that the specific indication in the initial Protection visa application of the applicant children having no claim of harm of their own undermined the applicant wife having any significant concern as to female genital mutilation being inflicted on the applicant children at the time she left Nigeria or thereafter. The Tribunal found that this, in turn, undermined the claim that there was a desire by the grandparents of the applicant children to inflict female genital mutilation on them.

21. Thirdly, the Tribunal referred to the applicants’ delay in applying for Protection visas as undermining the claims of the applicant wife in relation to female genital mutilation.

22. Fourthly, the Tribunal identified a concern in relation to the applicant wife’s evidence as to how the applicant husband’s family were aware of his criminal conviction and imprisonment.

23. Fifthly, the Tribunal identified that the applicant wife’s claim that she is ostracised by her own family due to her marriage is inconsistent with the evidence that suggests the applicant wife has on multiple occasions sent money to her father in Nigeria. The Tribunal identified raising this issue with the applicant wife pursuant to s 424AA of the Act. The Tribunal identified the applicant wife’s response and found that it was a further issue undermining her credibility.

24. Sixthly, the Tribunal referred to the evidence of the applicant wife suggesting that she, the applicant husband and the applicant children were safe from their respective families as they lived apart from them. The Tribunal referred to the applicant wife’s written statement indicating that the applicant husband suggested that the family move to another state of Nigeria, far from their respective families, which they did until they came to Australia. The Tribunal expressly referred to the applicant wife not indicating any difficulties suffered by the applicants during this period.

25. The Tribunal identified raising in the course of hearing with the applicant wife that the applicants could avoid harm by not living close to their respective families. The Tribunal also put to the applicant wife that she had given evidence that nothing had happened to the applicant children after they were born because they lived apart from the applicant husband’s family. The Tribunal also raised with the applicant wife that harm to the applicant children could be avoided by them living apart from their extended families. The Tribunal identified the applicant wife’s response, in which she denied she had given evidence that the family was able to live safely apart from the extended families.

26. In these circumstances, the Tribunal put to the applicant, pursuant to s 424AA of the Act, the prior evidence given by the applicant wife in the interview with the delegate that the family had lived a long way apart from the extended families as a means of avoiding harm and that nothing had happened to the applicant children when they lived apart from the extended families.

27. The Tribunal identified that this indicated that harm to the applicant children could be avoided by them living apart from their extended families and found that this further undermined the claims of harm advanced by the applicants.

28. The Tribunal referred to the applicant wife’s response and her concern in respect of the consequences of the applicant husband’s conviction. The Tribunal referred to the applicants having been able to avoid any harm from their extended families during the time they were in Nigeria because they had lived apart from their extended families.

29. The Tribunal then turned to the credibility assessment of the applicant husband and identified five detailed reasons in support of adverse credibility findings.

30. Firstly, the Tribunal identified that the applicant husband had provided markedly inconsistent evidence as to whether he had faced harm in Nigeria. The Tribunal found that the inconsistency in the applicant husband’s evidence and his late claim of physical attacks undermined the truth of the applicant husband’s claims and his overall credibility.

31. Secondly, the Tribunal identified the delay by the applicant husband in applying for a Protection visa in October 2018, when he had arrived in Australia in 2016.

32. Thirdly, the Tribunal identified the delay by the applicant husband until the date of interview with the delegate in making the claims that the applicant children were at risk of female genital mutilation and not making such claims in his application for a Protection visa as undermining the truth of those claims.

33. The Tribunal was not satisfied that if there had been ongoing concerns, including at the time the applicants left Nigeria, of female genital mutilation being inflicted on the applicant children that the applicant husband and the applicant wife would not have ensured that this was mentioned at an earlier opportunity than at the interview with the delegate.

34. Fourthly, the Tribunal referred to the expectation that if the applicant children had been at risk from birth of having female genital mutilation inflicted on them, an application on their behalf for a Protection visa would have been made soon after their arrival in Australia in January 2016. The Tribunal found that this delay was inconsistent with the truth of the claims advanced.

35. Fifthly, the Tribunal referred to the ability of the applicant husband and the applicant wife to prevent any female genital mutilation being inflicted on the applicant children after the first child was born in 2012 up until coming to Australia in 2016, suggesting that the applicant husband and applicant wife would be in a similar position to protect the applicant children from female genital mutilation on return to Nigeria.

36. The Tribunal noted that there was no independent information that had been provided indicating there was a risk based on customary law in Nigeria of extended family members imposing female genital mutilation on children over the objection of the parents. The Tribunal was not satisfied that there was any such custom.

37. The Tribunal accepted that female genital mutilation is a practice in Nigeria and accepted that customary law can apply in Nigeria, however, the Tribunal found that there was no evidence of customary law that would give rights to family members apart from the parents to determine that medical procedures, including female genital mutilation, be performed on children.

38. The Tribunal also did not accept that there was an increased risk to the applicant children of female genital mutilation because of the conviction of the applicant husband.

39. As a result of the credibility concerns, the Tribunal was not satisfied that the applicant wife or the applicant husband had been truthful and found that they were not credible witnesses. The Tribunal was not satisfied as to any substantive claims made by the applicant wife and the applicant husband.

40. The Tribunal was not satisfied that the family members of either the applicant wife or the applicant husband objected to the marriage of the applicant wife and the applicant husband. The Tribunal was not satisfied that either the applicant wife or the applicant husband have been alienated or ostracised by their own family members or family members of their respective spouses. The Tribunal was not satisfied that the applicant husband has been physically assaulted on any occasion by the family of the applicant wife or anyone else.

41. The Tribunal was not satisfied that the applicant husband’s criminal conviction has now created a new, significant, adverse intention by the extended families of the applicant wife and the applicant husband to harm the applicants, including by separating the applicant children from the parents or by causing female genital mutilation be inflicted upon the applicant children. The Tribunal was not satisfied that either the applicant wife or the applicant husband has a real chance of suffering serious or significant harm from members of their own family or members of their respective spouse’s family.

42. The Tribunal was not satisfied that the families of the applicant wife or the applicant husband would, or have the ability to, cause the applicant wife and applicant husband to separate or cause the applicant children to be separated from their parents. The Tribunal was not satisfied there is a real chance of serious and significant harm to any applicant on this basis.

43. The Tribunal referred to accepting the independent evidence as to the prevalence of female genital mutilation in Nigeria, including in relation to the tribe of the applicant husband. The Tribunal accepted the independent information that, in certain situations, grandparents can be involved in the decision as to whether female genital mutilation should occur. The Tribunal, however, found that the credibility issues identified caused it not to be satisfied that the family of the applicant husband or anyone else has sought to inflict female genital mutilation on the applicant children.

44. The Tribunal found, in any event, that the applicant wife and the applicant husband themselves have no desire to inflict female genital mutilation on the applicant children. The Tribunal found that the applicant wife and the applicant husband had the control and ability to enforce the determination that female genital mutilation not be inflicted on the applicant children up until the point that the family came to Australia. The Tribunal considered that, on return to Nigeria, this ability of the applicant wife and the applicant husband to determine no adverse medical procedures on the applicant children would continue.

45. In these circumstances, the Tribunal was not satisfied that the criminal conviction of the applicant husband would change that assessment. The Tribunal was also not satisfied that there existed in Nigeria customary law which could be enforced against the applicant wife, the applicant husband and the applicant children to cause female genital mutilation to be inflicted on the applicant children. The Tribunal found that no evidence has been provided which would lead the Tribunal to the view that the criminal conviction of the applicant husband in Australia would lead to a sanction against the applicant husband in Nigeria under customary law or provide any basis on which the applicant children could be subject to female genital mutilation.

1. The Tribunal was not satisfied of the claims that the families of either the applicant wife or applicant husband have an adverse interest or intention in relation to any of the applicants. The Tribunal found there was no real chance of serious or significant harm to any of the applicants on that basis. The Tribunal was not satisfied there was a real chance of serious or significant harm or female genital mutilation being inflicted on the applicant children on return to Nigeria for the reasons claimed.

2. Considering all of the circumstances, the Tribunal was not satisfied that there was a real chance of significant harm being inflicted on any applicant as a result of the application of customary law. The Tribunal was not satisfied that there was a real chance of serious or significant harm towards any of the applicants on returning to Nigeria for the reasons claimed.

3. The Tribunal was not satisfied that any of the applicants had a well-founded fear or persecution for the reasons set out in s 5J(1) of the Act. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Nigeria, any of the applicants face a real risk of significant harm. The Tribunal found that the applicants did not meet the criteria in ss 36(2)(a) and 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the amended application are as follows:

   1. The Tribunal made a jurisdictional error by failing to consider an important item of evidence or failing to engage in proper, genuine and realistic consideration with respect to the same.

   a. The Tribunal may make a jurisdictional error where it fails to consider an important item of evidence: see, for example, Minister for Immigration and Border Protection v SZSRS [2014] FCAF 16 [SZSRS] at [52]-[56];

   b. The Tribunal may make a jurisdictional error by failing to give proper, genuine and realistic consideration to the Applicant's case, in the sense of active intellectual engagement: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 [Carrascalao] at [45];

   c. The Tribunal found at paragraphs 47-53 of its decision that country information indicated that, while it was unusual for female genital mutilation (FGM) to be inflicted on children contrary to the wishes of their parents, relatives may apply pressure on parents to have FGM performed;

   d. The Tribunal found at paragraph 126 of its decision that the First Applicant and the Second Applicant had no desire to have FGM performed upon their children and that FGM would not be inflicted upon their children against their will;

   e. In making this finding, the Tribunal did not relevantly consider or engage with the possibility that the First Applicant and the Second Applicant would face pressure from their relatives to have FGM performed and whether, as a consequence of that pressure, the First Applicant and the Second Applicant might succumb to having FGM performed upon their children.

   2. The Tribunal made a jurisdictional error by failing to make a finding as to the reasonableness and practicability of the Applicants living in another state of Nigeria away from the First Applicant's family.

   a. The Tribunal found at paragraphs 93 and 99 of its decision that the Applicants had moved to another state of Nigeria away from the First Applicant’s family before they moved to Australia;

   b. The Tribunal found at paragraph 99 of its decision that the Applicants were able to avoid harm by doing so;

   c. The Tribunal found at paragraph 126 of its decision that the ability of the First Applicant and the Second Applicant to determine that there be no adverse medical procedures on their children would continue;

   d. The Tribunal, therefore, found that the reason or part of the reason for the capacity of the First Applicant and the Second Applicant to make the determination at paragraph 126 of its decision was the fact that the Applicants could live in another state of Nigeria;

   e. The Tribunal failed to assess whether it was reasonable or practicable for the Applicants to live in another state of Nigeria: CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [42].

Ground 1

1. In relation to ground 1, Mr Jones of counsel, on behalf of the applicants, maintained that there had not been an engagement by the Tribunal with a possibility that the resolve of the applicant wife and applicant husband may wilt under pressure of relatives in relation to female genital mutilation being performed.

2. Mr Jones in his submissions referred to parts of the Tribunal’s reasons referring to the relatives withholding support or relatives imposing mounting pressure to preserve cultural values. Mr Jones also referred to the evidence of the applicants allegedly moving to another state in Nigeria to be far from their respective families until they came to Australia. Mr Jones also referred to the reference in the Tribunal’s reasons to the applicants being able to avoid harm from extended families at the time they were in Nigeria because they lived apart from their extended families.

3. Mr Jones submitted that, in these circumstances, the Court should find that the Tribunal had not given proper, genuine and realistic consideration to the evidence because the evidence supported the possibility that the first and second applicants would face pressure which may not be successfully resisted. Mr Jones referred to the proposition that there was no grappling by the Tribunal with the additional situation beyond an attempt by a third party to have female genital mutilation performed on their children against their wishes and that the additional situation is pressure from the relatives to have female genital mutilation performed.

4. It is apparent from the Tribunal’s reasons that the Tribunal considered and made adverse findings in relation to the applicant children’s grandparents being able to inflict female genital mutilation on them against the wishes of the applicant children’s parents in the circumstances of the present case.

5. Mr Jones sought to summarise the effect of the Tribunal’s findings at paragraph 126 of its reasons by suggesting it reflected three propositions. Mr Jones’ summary was not a fair characterisation of the findings made by the Tribunal and it patently left out that the third and fourth applicants had not been subjected to female genital mutilation or any threats of female genital mutilation after their birth and prior to their departure from Nigeria.

6. Mr Jones conceded that there was no claim or submission that the applicant wife or applicant husband’s resolve would wilt. No such separate claim required any other assessment by the Tribunal because it was not a claim advanced and the Tribunal had expressly found that the applicant wife and applicant husband were opposed to female genital mutilation. This is not a case where there is any failure to have a real and meaningful engagement with the applicants’ claims and evidence. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Jones submitted that there had been a failure by the Tribunal in the circumstances of the present case to make findings in relation to whether it was reasonable and practicable for the applicant husband and the applicant wife to live in another state of Nigeria.

2. This is not a case where there is any finding that a particular area in the applicants’ home area is one in respect of which there was a well-founded fear of persecution or fear of significant harm. This is a case where the applicant wife and applicant husband had moved to another state of Nigeria prior to their departure from Nigeria and had lived there for some time.

3. There was no requirement in the circumstances of the present case to make findings in respect of the reasonableness or practicability of the applicants living in another state. It is apparent that the applicant wife and applicant husband had done so with the applicant children prior to their departure from Nigeria. The facts of the present case are clearly distinguishable in these circumstances from the issues that arose in CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14. Accordingly, no jurisdictional error as alleged in ground 2 is made out.

4. As the applicants have not made out any jurisdictional error, the amended application is dismissed.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 1 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  17 January 2020