DGN18 v Minister for Home Affairs
[2023] FedCFamC2G 18
Federal Circuit and Family Court of Australia
(DIVISION 2)
DGN18 v Minister for Home Affairs [2023] FedCFamC2G 18
File number: MLG 1825 of 2018 Judgment of: JUDGE T. YOUNG Date of judgment: 19 January 2023 Catchwords: MIGRATION – judicial review - applications for protection visas by mother and ex-nuptial child – where Tribunal found mother to be victim of domestic violence but that effective protection available in Malaysia – where Tribunal failed to take into account available country information contained in DFAT country report – where jurisdictional error - where country information significant to claims – where material – application allowed Legislation: Migration Act 1958 (Cth) ss 5J(1)(a), 5J(2), 5L, 499 Cases cited: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Division: Division 2 General Federal Law Number of paragraphs: 47 Dates of hearing: 8 April 2022 & 10 June 2022 Place: Darwin Counsel for the Applicants: Ms Chalmers SC Solicitor for the Applicants: Kajaliny Ranjith Legal Counsel for the Respondents: Ms Grenfell Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1825 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DGN18
First Applicant
DGO18
Second Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE T. YOUNG
DATE OF ORDER:
19 January 2023
THE COURT ORDERS THAT:
1.The period within which to make the application is extended to the date of the application.
2.A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 1 May 2018.
3.A writ of mandamus issue directed to the Second Respondent requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 29 September 2016.
4.The First Respondent is to pay the costs of the Applicant fixed in the sum of $7,853.
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 T. YOUNG
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 1 May 2018 to affirm a decision of the Minister’s delegate made on 29 September 2016 to refuse the applicants, a mother and her infant daughter, protection visas. The applicants seek an extension of time in which to bring the applications, which are about two weeks out of time.
The adult applicant is a citizen of Malaysia. She arrived lawfully in Australia from Malaysia in September 2015 on a tourist visa. Her daughter was born in Australia in May 2016. The child is now 6 years old. Having been born outside Malaysia the child is not a Malaysian citizen, although the Tribunal found that the child may apply for Malaysian citizenship.
The adult applicant applied for protection visas for herself and her daughter in April 2016.
The first applicant’s protection claims for herself and her daughter are as follows:
·she was forced to leave Malaysia after she found out she was pregnant and told her boyfriend;
·her boyfriend denied the child was his and her family were very angry with her and she was afraid they would kill her;
·while the first applicant carried the child, she was not married and, based on her religion, this was sinful. She was afraid her child would become an unwanted person in the future;
·she was forced to leave Malaysia because her family did not support her during the pregnancy and her boyfriend threatened to kill her and the child;
·if she returns to Malaysia her boyfriend will continue to look for her, threaten her and her child will never be happy. Her boyfriend has continued to threaten her. Her family do not accept her with the baby and she did not think she could survive facing their hostility;
·the police will not protect her because it was her own fault and relates to family matters. She has no evidence and nobody will be on her side;
·she lived with her family and worked nearby to her home. She loved her family and wanted to stay with them;
·her boyfriend would never marry her and her family threatened to kill her if they see her with the child. The boyfriend would beat her if she asked him to be responsible; and
·she wanted to stay near her family as she had never lived far away from them.
At the hearing the first applicant described her family background. She was born in Johor Baru. She is of Tamil ethnicity and Hindu religion. Her father is a retired security guard and lived on a pension. Her mother worked at home. She also has a sister living in Australia who had also applied for a protection visa because she had suffered family violence. Her sister’s case had not been decided.
She had worked as a teller in a money exchange facility before coming to Australia. She said she was four weeks pregnant when she came to Australia. She said that when she told her boyfriend or fiancé (he is referred to by both descriptions in the Tribunal’s reasons) she was pregnant he wanted her to have an abortion and abused her. The Tribunal member asked her why, if she and her fiancé had intended to marry, her fiancé would want her to abort the child. She said that there had been a death in the family and a wedding was not appropriate during a bereavement. The Tribunal member asked why they could not have married after the bereavement period. The first applicant said that she knew what type of people “they” (presumably the fiancé’s family) were and they were not supportive. Her fiancé had beaten her and she had fled. He had also been physically abusive before the pregnancy and she was concerned he might hurt the baby. She said her own family threatened her after she came to Australia, although less so lately.
The Tribunal member asked the first applicant if she had considered going to the police in Malaysia. She said she had gone to the police several times about her fiancé’s abuse but as the police considered it was “a family matter” they believed it should be resolved through mediation or with the assistance of elders. She said mediation had not worked.
The first applicant said she had continued to speak to her fiancé after coming to Australia but it was obvious that he was angry with her and she knew that if she went back to Malaysia with the child she would have no one to protect her.
The applicant said she spoke to her family in Malaysia by telephone but she now has little contact with them.
After she came to Australia her fiancé’s family had found “another girl for him” but when that girl found out her about her the girl broke of the alliance. That was another reason why her former fiancé’s family were very angry with her.
The first applicant said that her former fiancé or his family could find her anywhere in Malaysia and harm her.
The Tribunal considered in detail country information from a variety of sources about family or domestic violence in Malaysia, including the DFAT Country Information Report Malaysia 19 July 2016. The matters considered by the Tribunal included information about the sources of potential support, both governmental and non-governmental, for single or unmarried mothers; relevant legislative provisions; the position of ex-nuptial children in Malaysia; and the effectiveness of law-enforcement and the legal system in relation to domestic violence.
The Tribunal found that Malaysia has an appropriate system of criminal law, that the police force is effective and that it has a reasonably impartial judicial system. It found that, within government and outside, organisations exist in Malaysia which are sympathetic to persons in the position of the applicants. On the basis of country information the Tribunal found that, while Indian Malaysians generally have a lower socio-economic position and suffer some disadvantage as a result, they do not suffer discrimination or violence on a day-to-day basis. The Tribunal was not satisfied that the first applicant would be denied effective protection because she is a Tamil Hindu.
The Tribunal also made detailed findings about the first applicant’s credibility. The Tribunal was not convinced that the first applicant’s former fiancé is currently, or would continue to be, adversely interested in her given that he did not want to take emotional and financial responsibility for her and the child.
The Tribunal did not accept that the applicant had complained to police about her former fiancé’s abuse but they had done nothing about it other than refer her to mediation. The Tribunal considered this was inconsistent with country information. The Tribunal referred to a lack of evidence that the applicant had ever referred her serious concerns for her safety and that of her in utero child to the police or any other agency. The Tribunal found it implausible that the first applicant had not been referred to one or more of the various agencies in Malaysia dealing with the protection of women and children or been advised to take out an intervention order.
The Tribunal accepted, however, that the first applicant’s claims had been mainly consistent. Further, the Tribunal had no evidence that the first applicant’s former fiancé, his family or her own family did not continue to want to harm the first applicant and her child.
The Tribunal accepted that the first applicant was a single mother; that she was raising her child without the assistance of the child’s father; that the father of the child had assaulted and threatened her and been otherwise abusive even prior to the unplanned pregnancy; that the family of her former fiancé was angry with her and had physically attacked her; that the first applicant’s own family were angry with her because she had brought shame on them as an unmarried mother; that she is concerned that her former fiancé and his family might harm her and her child if she returned to Malaysia; her own family would not provide support to her and she is concerned that her child would not be “registered” and accepted in Malaysian society.
Notwithstanding some of its other findings, the Tribunal accepted there was a real chance that the applicants will suffer serious harm on their return to Malaysia, including physical and mental ill-treatment by the first applicant’s family, her former fiancé and his family, because she had fallen pregnant outside marriage. The Tribunal found the first applicant is a member of a particular social group, being “single mothers who have suffered family violence” and that the child was a member of a particular social group, being “children born out of wedlock, being raised by single mother” and a “child of a single mother who is being pursued by her biological father, along with her mother”. Accordingly, the Tribunal found that the applicants satisfied the test in section 5J(1)(a) of the Migration Act (the Act).
However, the Tribunal considered that effective protection measures were available to the applicants, as victims of family violence, for the purposes of section 5J(2) of the Act and accordingly they did not have a well-founded fear of persecution. The Tribunal referred to its earlier findings about the effectiveness of the state response, including by the police and other agencies, to domestic violence and found that the applicants did not face a real chance of serious harm because of their membership of a particular social group or groups. The Tribunal was not satisfied that the applicants were persons in respect of whom Australia has protection obligations under section 36(2)(a) of the Act. For substantially the same reasons, the Tribunal was not satisfied that there is a real risk that the applicants will suffer significant harm for the purposes of section 36(2)(aa) of the Act if they return to Malaysia.
In the alternative, the Tribunal also found, if there was a real risk that the applicants would suffer significant harm, that it was reasonable for the applicants to relocate to another part of Malaysia. The Tribunal also considered whether the child applicant would face a real chance of serious harm in Malaysia because she is an ex-nuptial child. The Tribunal accepted this would cause some difficulty for the child socially and culturally and she may suffer stigma but did not accept that such hardship amounts to serious harm for the purposes of the Act.
Grounds of review
The grounds of review of both applicants were set out in the amended application for review as follows:
IThe Tribunal failed to give proper and adequate consideration to the question of whether it would be reasonable, in the circumstances of the main applicant and the secondary applicant, for them to relocate to another specified place within Malaysia.
Particulars
a) The Tribunal found that the applicant could reasonably relocate to another area in Malaysia.
b) The Tribunal failed to consider the reasonableness of relocation by reference to the specific circumstances of the main applicant and the secondary applicant and the realities of life for them in the putative safe location.
c) The Tribunal failed to give proper consideration to the reasonableness of relocation by reference to explore (sic) whether the main applicant and the secondary applicant will reasonably be able to subsist in the putative safe location.
IIThe AAT erred in law by determining that there were effective protection measures available to the applicant pursuant to s 5J (2) and 5L of the Act, because the Tribunal failed to take into account a relevant consideration, namely information contained in the DFAT Country Information dated 19 April 2018;
AND
In relation to the child’s application, when the Tribunal additionally failed to consider how the child status as a stateless person or non-citizen could impact upon her ability to access effective protection measures.
IIIThe AAT erred in law when it concluded that the applicants could obtain protection from an authority of Malaysia pursuant to 36 (2B)(b) of the Act because the Tribunal failed to take into account a relevant consideration, namely information contained in the DFAT Country Information dated 19 April 2018,
AND
In relation to the child’s application, when the Tribunal additionally failed to consider how the child’s status as a stateless person or non-citizen could impact upon her ability to obtain protection from such an authority.
Ground 1
The Tribunal’s primary finding was that the applicants did not have a well-founded fear of persecution because effective protection measures were available to them in Malaysia. The Tribunal made a finding in the alternative that it was reasonable for the applicants to relocate within Malaysia. If the primary finding of the Tribunal was subject to material jurisdictional error the decision will be quashed and remitted to the Tribunal. If the primary finding is not subject to material jurisdictional error the decision will not be quashed, regardless of any error in making the alternative finding. This ground is therefore irrelevant to the outcome of the application. It is unnecessary to consider it further.
Grounds 2 and 3
Grounds 2 and 3 are each divided into two separate parts but the grounds raise in substance only two points. The first part in each ground alleges that the Tribunal failed to take into account a relevant consideration, namely information contained in the DFAT Country Information dated 19 April 2018. The second part of each ground alleges that the Tribunal failed to consider how the child’s status could affect the availability to her of effective protection in Malaysia or her ability to obtain protection from an authority.
Beginning with the first part of each ground, section 499 of the Act relevantly provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
It was not in dispute that Ministerial Direction No 56 was made pursuant to section 499 of the Act. Clause 3 of Ministerial Direction No 56 requires that:
Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision-maker, the decision-maker must take into account that assessment, where relevant, in making their decision. The decision-maker is not precluded from considering other relevant information about the country.
The Tribunal expressly referred to its obligation under Ministerial Direction No 56. The Tribunal’s reasons recorded that it took into account DFAT Country Information Report Malaysia 19 July 2016 (the 2016 Report).
On 19 April 2018 a new or updated report was published, DFAT Country Information Report Malaysia 19 April 2018 (the 2018 Report).
The date of the Tribunal’s decision was 1 May 2018, some 12 days after the publication of the 2018 Report. The Tribunal’s reasons did not refer to this report and it may be inferred that the Tribunal did not take it into account. It was not in dispute that it was available to the Tribunal and relevant. It may have been overlooked in the short period between the completion of the writing of the reasons for decision and publication of the decision. Nevertheless, the Minister conceded, properly in my view, that the Tribunal had failed to take into account a mandatory consideration and that the decision was thus affected by jurisdictional error. However, the Minister submitted that having regard to the small differences between the two reports, which counsel said were insignificant, that the jurisdictional error was not material.
The forensic task undertaken by the applicants was to demonstrate by comparison of the two reports that the error was material.
The particular areas of focus of the applicants’ submissions concerned the state response to domestic violence and the professionalism and competence of the Malaysian police in its response to domestic violence.
Under the heading “Domestic Violence” the 2016 Report said:
3.82… Police training on domestic violence is limited and the judiciary receives little to no training in the application of relevant law. However, Malaysia has taken significant steps to reduce domestic violence. Domestic violence conviction rates have increased over the past decade and police are becoming more responsive to reports of rape against women as police headquarters in each state now maintain sexual investigation units to assist victims of sexual crimes and abuse…
3.83A number of government and non-government bodies provide shelters and assistance to victims but contacts report that these services are inadequate for demand. The government introduced One Stop Crisis Centres (OSCC) in Malaysian hospitals in 1996 which aim to provide a centralised one-stop facility to victims. The OSCC in Kuala Lumpur includes examination by female doctors, evidence management, referrals and crisis intervention, counselling, temporary shelter and legal assistance. In 2011, UN Women reported that the Malaysian OSCC model was extremely successful in combining clinical therapeutic responses with secondary preventive measures.
3.84…
3.85DFAT assesses that while the situation is improving, confusion between federal and state laws and a lack of capacity within the police and judiciary, make it difficult for women to gain adequate state protection and to safely leave violent relationships.
Under the same heading the 2018 Report said:
3.106 Police training on domestic violence is limited and the judiciary receives little or no training on the application of relevant laws. However, Malaysia has taken significant steps to reduce domestic violence. Domestic violence conviction rates have increased over the past decade. The RMP Criminal Investigation Division includes a Sexual Investigation Division…
3.107 Amendments to the Domestic Violence Act (1994), passed in August 2017, strengthens (sic) protections for victims of domestic violence through enhanced procedures including Emergency Protection Orders that can be applied immediately for up to a week and prevent a perpetrator from entering a safe location. The Act expands the definition of domestic violence. Women’s groups support the amendments, but call for greater training, enforcement, resources and further improvements to the law…
3.108 …
3.109 A number of government and non-government bodies provide shelters and assistance to victims but contacts report that these services are inadequate for demand. The government introduced One Stop Crisis Centres (OSCC) in Malaysian hospitals in 1996 which aim to provide a centralised one-stop facility to victims. The OSCC in Kuala Lumpur includes examination by female doctors, evidence management, referrals and crisis intervention, counselling, temporary shelter and legal assistance. In 2011, UN Women reported that the Malaysian OSCC model was extremely successful in combining clinical therapeutic responses with secondary preventive measures.
3.110 …
3.111 DFAT assesses that, while the situation is improving, ambiguity between federal and state laws, lack of application and capacity within the police and judiciary, and lack of awareness of their rights create difficulties for women to gain adequate state protection and to safely leave violent relationships.
The applicants submitted that the passages in the 2016 Report indicate a more optimistic assessment of the existence of effective protection for the victims of domestic violence than the 2018 Report. Paragraphs 3.82 and 3.83 of the 2016 Report are reproduced without significant change at paragraphs 3.106 and 3.109 respectively of the 2018 Report. Paragraph 3.107 of the 2018 Report refers to amendments to the Domestic Violence Act which apparently make emergency injunctive orders more accessible. In my view, there is no significant difference in these parts of the two reports. It might be thought that neither paragraph 3.85 nor paragraph 3.111 express a particularly optimistic overall assessment of whether effective protection exists for the victims of domestic violence.
It is significant, however, that paragraph 3.111 of the 2018 Report adds an additional phrase (underlined) to an existing sentence which refers to a “lack of application and capacity within the police and judiciary”. The meaning of the additional phrase “lack of application” is somewhat unclear in this context. However, I interpret it as referring to a lack of interest in responding to domestic violence or an unwillingness to apply existing law on the part of the police and judiciary. In my view, this is significant because the first applicant stated to the Tribunal that she had complained to the police on multiple occasions about her former fiancé’s abuse but was merely referred to mediation (see paragraph 63 of the Tribunal’s reasons). The Tribunal said of the first applicant’s claim in this regard that it “strains credulity”. The Tribunal reached this adverse credibility assessment on a number of grounds, including the lack of any objective evidence that the first applicant had complained to the police. The Tribunal also reasoned that “ … given the country information it is also difficult to accept that the police might not have referred the applicant to some of the agencies dealing with the protection of women and children or advised the applicant to take out an intervention order.” In my view, the first applicant’s claim is consistent with the observation at paragraph 3.111 of the 2018 Report about the police “lack of application”, which I interpret as referring to a lack of interest in domestic violence or unwillingness to apply the relevant law on the part of the police. This part of the 2018 Report is thus not inconsistent with the first applicant’s claim but consistent with it.
The other focus of the applicants’ submissions was on the country information more generally about the professionalism and competence of the Malaysian police.
The 2016 report said under the heading Royal Malaysian Police (RMP):
5.5The RMP employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam does conduct some human rights training and workshops for police and prison officials. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see “Police Integrity and Accountability”, below). The RMP is 80-85% ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.
Police Integrity and Accountability
5.6The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion.
In the 2018 report the section corresponding to paragraph 5.5 is slightly reworded and includes an additional sentence (underlined) :
… Police officers are among the lowest paid members of the Malaysian civil service. According to Transparency International, Malaysians perceive the police is one of the most corrupt institutions in the country (Please Integrity and Accountability). The RMP is 80 – 85% Malay.…
Both reports referred to the existence of police corruption. The 2018 report referred to Transparency International whereas the 2016 report merely referred to corruption as a “concern” or a widespread perception. In my view, there is no significant difference between the two reports concerning police corruption.
The applicants’ submissions also referred to additional information in the 2018 report about low rates of employment of Indian Malaysian women, the lack of legislation protecting women from discrimination in the workplace and the position of irregular migrants. In my view none of these matters have any bearing on the question of effective protection or the applicants’ ability to obtain protection from an authority.
The second part of grounds 2 and 3 alleges that the Tribunal failed to consider how the child’s status could affect the availability to her of effective protection in Malaysia.
There is no indication in the first applicant’s or the second applicants protection visa application, in the hearing before the delegate or in the hearing before the Tribunal, that a claim was advanced that the child’s status as a non-citizen of Malaysia would affect the availability to her of effective protection. I am not satisfied this was an integer of the applicant’s claims or arose by necessary implication. I am not satisfied the Tribunal has committed any error in this regard.
Materiality
In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 the plurality (Kiefel CJ, Gageler and Keane JJ) said at [31]:
… the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.
The 2018 Report included information about police “lack of application” in responding to domestic violence. This information was not included in the 2016 Report, although there was other information in that report indicating that there were “difficulties for women to gain adequate state protection” in cases of domestic violence. However, the additional information in the 2018 Report was significant because it was consistent with or bolstered the first applicant’s claim that police had failed to assist her on multiple occasions when she complained of abuse. The Tribunal refused to accept this claim, in part because the Tribunal concluded it was inconsistent with country information, primarily the 2016 Report. The refusal to accept this was a step in the Tribunal’s reasoning to find that effective protection was available to the applicants.
The additional information was relevant and supported the first applicant’s claim in relation to an important point on which she was not believed. I am satisfied that if the Tribunal had taken the additional information into account it could have affected the decision made.
I am satisfied it is necessary in the interests of justice to extend the period within which to bring the application.
I am satisfied the error was material. The decision will be quashed.
The Minister is to pay the applicant’s costs in the sum of $7,853.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge T. Young. Associate:
Dated: 19 January 2023
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