DJS16 v Minister for Immigration

[2017] FCCA 3166

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJS16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3166

Catchwords:
MIGRATION – Review of a decision of the Administrative Appeals Tribunal – where Applicant claims the Tribunal failed to take into account relevant considerations – no jurisdictional error – application dismissed.

Legislation:

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

Federal Circuit Court Rules 2001 (Cth) r.44.12

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZZNK v Minister for Immigration and Border Protection [2015] FCA 217
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10, 11

First Applicant: DJS16

Second Applicant: DJT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2463 of 2016

Judgment of: Judge Hartnett

Hearing date: 28 November 2017

Delivered at: Melbourne

Delivered on: 28 November 2017

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Nyabally

Solicitors for the First Respondent: Mills Oakley

ORDERS

1. There is leave to the First Applicant to file an affidavit sworn 28 November 2017.

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

3. The Applicants pay the cost of the First Respondent fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2463 of 2016

DJS16

Applicant

DJT16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed by the Applicants on 11 November 2016. The Applicants seek review of the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 14 October 2016 which affirmed a decision of a delegate of the First Respondent dated 2 June 2014 not to grant to the Applicants (Protection) (Class XA) visas (‘the visas’).

2. Orders were made by consent before Registrar Caporale on 10 May 2017. The matter was listed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 (Cth). Other orders provided, relevantly, that the First Applicant (‘the Applicant’) file and serve:-

   a)any amended application with proper particulars of the grounds of the application;

   b)supplementary court book, if any; and

   c)written submissions.

3. The First Applicant (‘the Applicant’) did not amend her application so as to particularise the grounds therein and nor did the Applicant file any written submissions in the proceedings. 

4. The grounds of application, as set out in the application filed 11 November 2016, are as follows:-

   “1. The decision of the Tribunal:

   (a) is affected by an error of law; and

   (b) denied the applicant procedural fairness.”

5. As can be seen, there is no particularisation of the grounds of application. They are fairly meaningless.  When asked during the hearing of the matter this day whether the Applicant wished to make oral submissions, the Applicant indicated that she did so. She submitted that the Tribunal decision was affected by an error of law in that the Tribunal had failed to take into account a relevant consideration, that being matters pertaining to the custody of her son, as set out in submissions filed on her behalf by her migration agent, and which appear in the evidence as contained in the Court Book at pages 341 and 342. Additionally, the Applicant said as to the Tribunal’s failure to afford her procedural fairness that the adverse credibility findings in respect of some of her claims were a defamation of her character.  She further submitted, that it was important for the Tribunal to consider the best wishes of the Second Applicant, her child (DJT16) and that the Tribunal should have indicated to her that it required DJT16 to give evidence in the proceedings.

6. The Applicant, of course, had an opportunity to put before the Tribunal such witnesses as she chose. She indicated in her ‘response to hearing invitation’ that she proposed to call an adult witness who did give evidence before the Tribunal, but did not propose to call the Second Applicant, her child.

7. After the Applicant made her oral submissions this day, and after being given an opportunity to reply to the First Respondent’s oral and written  submissions, the Applicant indicated that she wished for an adjournment of the proceedings.  The Court granted her leave to file an affidavit in support of that application. The application for an adjournment was opposed by the First Respondent. The Applicant sought an adjournment on the basis of her need to obtain legal assistance; the best interests of her child; and the state of her mental health. 

8. The Applicant has had in excess of one year to obtain legal assistance in respect of these proceedings.  Other than an approach to the Asylum Seekers Resource Centre, and to Victoria Legal Aid, the Applicant appears to have made no other attempts to obtain legal representation. Neither of those advances referred to here resulted in legal representation for the Applicant. The Applicant’s suggestion that the Court needs to consider, as a paramount consideration, the welfare of the Applicant’s son, now aged 11 years, was a misconception as to the nature of the proceedings. The psychologist’s report from “Home Psychology”, annexed to the affidavit of the Applicant which was filed this day, was not a doctor’s report going to a condition suffered by the Applicant this day which precluded her from participating meaningfully in the hearing.

9. The Applicant commenced attending upon a psychologist in about May 2017 and has had a number of sessions between that time and 26 October 2017. On 26 October 2017 the treating psychologist considered the Applicant to have mental health difficulties which precluded her participation in a court hearing. That conclusion was arrived at approximately one month ago. There was no opportunity for the First Respondent to challenge the contents of that report this day and  nor was there any medical evidence before the Court this day that suggested the Applicant was unable to participate in the proceedings due to a medical condition.  Indeed, the Applicant participated fully. The application for an adjournment was refused.

Background

1. The Applicants are citizens of Malaysia.  The Second Applicant is the son of the Applicant. The Applicant, whose last arrival in Australia was on 28 March 2013, was the holder of a (Class UD) subclass 976 Electronic Travel Authority (ETA) valid until 28 June 2013. The Applicant has an extensive travel history. It has included previous periods of residence in Australia totalling approximately 10 years. In the Decision Record of 2 June 2014 of the delegate of the First Respondent, the delegate set out the history of the Applicant in Australia wherein the Applicant lived in Australia from 1995 until 1998 as the holder of a (Class TU) subclass 560 student visa while attending the Geelong College Boarding School; and, from 1999 to 2002, lived in Australia while studying a Bachelor of Commence at Deakin University. The Applicant held a (Class TU) subclass 573 student visa from February 2002 until departing Australia on 3 March 2003. The Applicant has also made numerous visits to Australia between 2003 and 2012 as the holder of an ETA.

2. In December 2004, the Applicant married an Indonesian national. The Applicant resided in Indonesia from 2004 to 2013 with her husband and their child (following his birth). The Second Applicant was born in Malaysia in September 2006.  The Applicant and her husband divorced on 28 May 2012. 

3. The Applicant’s parents and two older brothers continue to reside in Malaysia. The Applicant has an aunt and an uncle living in Australia.

4. The Second Applicant, previously travelled to Australia as the holder of ETAs for short-term visits in 2008, 2009, 2010, 2011 and 2012.  His last arrival in Australia was on 28 March 2013.

5. The Applicants applied for protection visas on 22 May 2013.  In her protection visa application, the Applicant claimed to fear harm from her ex-husband, who she claimed had previously committed domestic violence against her. She also feared that her ex-husband would take custody of, or abduct, their son, if the Applicants returned to Malaysia. In addition, the Applicant claimed she had suffered domestic violence throughout her childhood and throughout her marriage and suffered more violence when she went back to Malaysia for her divorce and settlement.

6. The Applicant claimed that the Indonesian and Malaysian authorities were unable to protect her due to her ex-husband’s family and their connections, as well as corruption in Malaysian laws that prefer the rights of men over women. The Second Applicant did not make any independent claims and applied for protection on the basis of his membership of his mother’s family unit.

7. The Applicant provided various documents to the Department of Immigration and Border Protection (‘the Department’) in support of her claims, including various Malaysian and Indonesian identity documents; medical and legal references concerning the Applicant’s divorce proceedings and her psychological health; correspondence with the Australian Embassy; and a bundle of statements, submissions and documents that she had prepared articulating her fears of harm.

8. On 2 June 2014, a delegate of the Minister made a decision to refuse to grant the Applicants protection visas. The delegate found the Applicant to be a citizen of Malaysia and accepted the Applicant did not have a right to be granted citizenship or permanent residency in Indonesia. The delegate found there was no evidence that the Applicant’s ex-husband would wish to, or be able to, exert pressure on the legal system in Malaysia. The delegate noted the Applicant’s family members “were not without resources, connections and influence in Malaysia” and that “the Applicant’s parents have demonstrated their willingness to support the Applicant by travelling to Indonesia to assist her with her legal and custody matters”.

9. The delegate accepted that the Applicant belonged to a particular social group in Malaysia of ‘divorced Muslim women with children’ and accepted that she may experience some level of discrimination and economic disadvantage. However, the delegate found, as the Applicant was university educated, entitled to receive alimony, and had the offer of family support, that any disadvantage she might suffer would not constitute serious harm or persecution.  The delegate was therefore not satisfied that the Applicants had a well-founded fear of persecution or faced a real risk of significant harm for the reasons claimed.

10. On 19 June 2014, the Applicants lodged an application with the Tribunal to review the delegate’s decision. They provided to the  Tribunal a copy of the delegate’s Decision Record and refusal notification letter.

11. On 13 November 2014, and as set out in the First Respondent’s submissions, the Applicant’s new representative provided the Tribunal with a statutory declaration by the Applicant; submissions that addressed the findings of the delegate and raised new claims for protection; and other supporting documents.  In her statutory declaration, the Applicant expanded on her previous claims, stating that one of the reasons she decided to marry her ex-husband was because she was suffering domestic violence at home in Malaysia. She claimed she desperately wanted to get away from her physically and emotionally abusive parents. She also feared returning to Malaysia as she would have no option but to live with her abusive parents.

12. The Applicant also provided to the Tribunal further details concerning her claims to have been abused by her ex-husband in Indonesia. She claimed that she continued to fear harm from her ex-husband, who had attempted to seek custody of their child in the Malaysian Syariah High Court. The Applicant also claimed she commenced a relationship with a non-Muslim man in January 2014 whom she saw regularly.  The Applicant claimed she feared harm if she returned to Malaysia arising from her abusive parents, her ex-husband (whom she feared would abduct her son) and her “criminal acts of apostasy” arising from her relationship with a non-Muslim man in Australia.

13. On 5 February 2015, the Applicant was invited to a hearing scheduled for 14 April 2015. 

14. On 30 March 2015, the Applicant’s migration agent provided the Tribunal with a completed hearing response form. In that response, the Applicant provided a signed declaration confirming that the Second Applicant would not attend the hearing and requesting that evidence be taken from a witness. She provided a summary of the evidence the witness would provide. 

The Tribunal

1. On 14 April 2015, the Applicant appeared at a hearing before the Tribunal.

2. Among the various court documents with translated excerpts provided to the Tribunal were documents which went to the divorce, property and custody proceedings between the Applicant and her ex-husband. The Tribunal discussed those documents with the Applicant.  The Applicant told the Tribunal that when her ex-husband applied for custody of the Second Applicant, her parents engaged one of the best Syariah lawyers in Malaysia, who was also a friend of the family.  The documents before the Tribunal indicated that the custody case in Malaysia was dismissed.

3. The Tribunal, in its Statement of Decision and Reasons (‘the Decision Record’) at paragraph 23 said:-

   “When the Tribunal noted that her ex-husband has not pursued another custody application or demonstrated any intention to seek custody of [DJT16] since he has been in Australia, the applicant said he is just waiting for them to return to Malaysia.”

4. The Applicant claimed before the Tribunal that her ex-husband came to Australia in August 2014 and sought contact with the Second Applicant. She claimed that she was afraid he would abduct the Second Applicant, so, on the advice of the Second Applicant’s school, she obtained an intervention order on 15 August 2014 preventing her ex-husband from having any contact with the Second Applicant.  The Applicant claimed the intervention order subsequently lapsed, because it could not be served on her ex-husband.  In response to that claim, the Tribunal said in paragraphs 25 and 26 of the Decision Record:

   “25. The Tribunal searched the Department’s Movement Records and issued a summons to the Department for their Movement Records in order to confirm that the applicant’s ex-husband entered Australia in 2014. The Movement Records obtained by the Tribunal and provided by the Department show that his most recent entry into Australia was on 26 December 2010 and that he departed on 12 January 2011. When the Tribunal put to the applicant (pursuant to s.424AA of the Act) that there is no record of her ex-husband entering or departing Australia in August 2014, the applicant stated that she does not understand how this is the case and reiterated that he visited [the Second Applicant] in 2014. She told the previous Tribunal that he may have travelled on a diplomatic passport, however the Tribunal understands that entry on a diplomatic passport will still show up on the Movements Records database. The applicant told the Tribunal that her husband may have used his intelligence contacts to have his entry and exit deleted from the Australian government database.

   26. The Applicant provided screenshots of chats allegedly between herself and her ex-husband on 15 August 2014 making arrangements for his contact with [the Second Applicant] and a photo of [the Second Applican] supposedly with his father in Geelong. The Tribunal raised the following concern about this evidence with the Applicant.  The Applicant obtained the IO on 15 August at 11.45am then, despite the IO, apparently messaged her ex-husband at 2pm on the same day and asked him if he wanted to see [the Second Applicant] that day or the next day and then arranged for them to meet at the waterfront that night at 6pm.  When the Tribunal queried why she obtained an IO then arranged for her ex-husband to meet [the Second Applicant], the applicant said that the IO was just to prevent her ex-husband from taking [the Second Applicant] out of school.  The Tribunal noted that it prevents all contact.  When asked why she did not tell the police her ex-husband would be at the waterfront that evening so they could serve the IO, the applicant said she did not think ahead and was traumatised and did not know her ex-husband’s motives.”

5. A reconstituted Tribunal invited the Applicant to attend a further hearing on 22 July 2016, which was later rescheduled to 6 September 2016 at the Applicant’s request. The Applicant provided the Tribunal with further documents, country information and research, as her representative had done following the Applicant appearing before the Tribunal on 14 April 2015.

Tribunal decision 

1. On 14 October 2016 the Tribunal made a decision affirming the delegate’s decision. The Tribunal accepted that the Applicants were both Malaysian nationals and that the Second Applicant appeared to have an assumption of Indonesian citizenship and a right to enter and reside in Indonesia as the minor child of an Indonesian father. 

2. The Tribunal considered the Applicant’s claims that her ex-husband was “violent” and a psychopath.  The Tribunal was unable to make any findings in relation to the claimed violence within the marriage but accepted that there may have been anger and hostility between the Applicant and her ex-husband.  The Tribunal was satisfied, as set out in paragraph 30 of the Decision Record, that the Applicant’s husband knew she was coming to Australia with the Second Applicant.  As the Applicant’s ex-husband has contact with the Second Applicant on approximately a monthly or two-monthly basis, and has not made any further custody application since the Second Applicant has been in Australia, the Tribunal was satisfied that he was not seeking to change the current custodial arrangements. 

3. The Tribunal considered the Applicant’s claim that her ex-husband visited their son in August 2014, but placed greater weight on the absence of any record in the Australian Government database of his claimed entry, into Australia, in 2014. In the absence of any record of his entry, the Tribunal found the Applicant’s ex-husband did not visit the Second Applicant in 2014 as claimed.  The Tribunal did not accept that the Applicant’s ex-husband had the power or the inclination to erase his entry from the Australian Government database. 

4. The Tribunal found that the screenshots’ photograph and the Intervention Order application (referred to in paragraph 26 of the Decision Record as set out in paragraph 27 above) had accordingly all been contrived by the Applicant in order to bolster the Applicant’s claim that her ex-husband wanted custody of the Second Applicant. 

5. The Tribunal did not accept that the Applicant’s ex-husband intended to abduct the Second Applicant if he and the Applicant returned to Malaysia. The Tribunal found the evidence provided indicated that the Applicant’s ex-husband had regular but relatively infrequent contact with the Second Applicant, having visited him once in the three years that the Second Applicant had been living in Australia. 

6. The Tribunal then considered the Applicant’s claim that her son was now of an age that his father was entitled to custody under Syariah law and would take custody if they returned to Malaysia. It considered country information about Malaysian custody laws and put to the Applicant that she could make an application for custody in Malaysia.  The Tribunal considered the Applicant’s claims that she would lose custody of the Second Applicant because she had had a relationship with a non-Muslim man. In that consideration, the Tribunal noted that Mr Aaron Donaldson provided evidence about his relationship with the Applicant during the course of the Tribunal hearing.  The Tribunal accepted that the Applicant may have had a relationship with Mr Donaldson but said as to that relationship and the Malaysian legal processes:-

   “42. The Tribunal accepts that this relationship may provide a ground for the applicant’s ex-husband to seek custody of [the Second Applicant]. However, as stated above, the Tribunal is satisfied that the Court will decide any custody case on the basis of the principles set out above and that the applicant will have an opportunity to make her case for custody in the court. The Tribunal notes that the applicant successfully contested her ex-husband’s previous custody application and that she has access through her family, to the best Syariah law advocate in Malaysia.  The Tribunal also notes that the applicant’s parents were not concerned about the relationship and have high standing in Malaysia and are equally as able to access a favourable court outcome as her ex-husband who, the Tribunal notes may be disadvantaged in a Malaysian court because he is not resident in Malaysia.

   43. The Tribunal accepts that the applicant may be genuinely concerned that she will lose custody of [the Second Applicant] if she returns to Malaysia and that this would be very distressing for her and possibly[the Second Applicant]. The Tribunal is satisfied that Malaysia has proper legal process for awarding custody in which the welfare of the child is of paramount consideration and that the Applicant has the means to avail herself of that legal process. Accordingly, the Tribunal does not accept that any application for custody of [the Second Applicant] by the Applicant’s ex-husband if the Applicant and [the Second Applicant] return to Malaysia amounts to persecution or significant harm in relation to either the Applicant or [the Second Applicant].”

1. The Tribunal considered the Applicant’s claims about past domestic violence and abuse by her ex-husband toward her and her son but found on the basis of the evidence before it that it was not able to make any findings about whether claimed violence within the marriage occurred. Whilst it accepted that witnessing domestic violence might be harmful to a child’s development, it found that any domestic violence was not ongoing as the Applicant and her ex-husband are now divorced. In the absence of any statement from the Second Applicant or other supporting evidence the Tribunal was not satisfied of the Applicant’s claim that her ex-husband abused their son because he returned from a visit with a bruise on his shin. The Tribunal found the Applicant could present these and other matters in any future custody application. 

2. The Tribunal considered the Applicant’s claims that:-

   a)she could not return to Malaysia as she would have to live with her parents who were abusive toward her which would in turn affect the Second Applicant;

   b)she was unable to live separately from her parents as her father was traditional and conservative and it was contrary to Malaysian culture; and

   c)she and her son lived in a house owned by her parents and were entirely financially dependent on her parents who stayed with them when they visited Australia.

3. The Tribunal put information to the Applicant, pursuant to s.424AA of the Migration Act 1958 (Cth) (‘the Act’), namely, movement records obtained in respect of the Applicant’s parents, which showed that they travelled to Australia frequently. The movement records of the Applicant’s mother indicated that she travelled to Australia on the same, or almost the same, dates as the Applicant on six occasions between 2004 and 2013, and that she visited Australia six times between when the Applicant and the Second Applicant entered Australia in March 2013 and January 2015.

4. As set out in paragraph 52 of the Decision Record, the Tribunal put to the Applicant (pursuant to s.424AA of the Act) that the evidence of her mother’s movement records indicated that she had a close and supportive relationship with her mother. The Applicant agreed that she had a close relationship with her parents and that they loved each other.

5. The movement records of the Applicant’s father confirmed the Applicant’s evidence to the Tribunal that he also travelled to Australia regularly.  His movement records showed that he travelled to Australia with the Applicant’s mother on the six occasions referred to above and that he had also travelled to Australia a further three times in 2015 and 2016.

6. Whilst the Tribunal accepted that there may be occasional conflict between the Applicant and her parents, the Tribunal found that they had generally a close and supportive relationship.  The Tribunal did not accept that the Applicant had been forced to live in her parents’ home and be supported by them because she could not get a job in Australia, subject to visa conditions, given that she was, at the time, a 36 year old woman with a university degree and excellent English language skills.

7. The Tribunal did not accept the Applicant was unable to live with her parents in Malaysia because they were abusive toward her or because such abuse would be adverse to the Second Applicant.

8. The Tribunal further found that single and divorced women were able to live independently in Kuala Lumpur and found that, given her age and his support of her whilst in Australia, the Applicant’s father would not insist on her living in the family home in Malaysia.  The Tribunal also did not accept the Applicant’s evidence that she did not speak Malay, and found on the basis of country information and the Applicant’s education and business experience, that she could obtain employment and live separately from her parents in Kuala Lumpur if she wished to.

Apostate claim

1. The Tribunal then considered the Applicant’s claims that she would be viewed as an apostate in Malaysia.  The Tribunal put to the Applicant that an apostate was someone who formally renounced their Muslim faith and that she had not done this. It also referred to country information that indicated marriages between Muslims and non-Muslims and conversion from Islam to another religion were possible in Malaysia, though more difficult. In light of this information, the Tribunal was not satisfied that the Applicant would be viewed as an apostate in Malaysia because she had a relationship with a non-Muslim man in Australia.

2. Having regard to all the evidence and its earlier findings, the Tribunal did not accept the Applicant faced a real chance of serious harm for any of the reasons claimed, either individual or cumulatively.  Similarly, the Tribunal considered the Applicant’s claims individually and cumulatively against the complementary protection criterion, but found the Applicants did not face a real risk of significant harm.

3. The Tribunal was not satisfied Australia owed the Applicants protection under ss.36(2)(a) or 36(2)(aa) of the Act.

Consideration

1. The grounds of review fail to disclose an arguable case for the relief claimed in the application.  The Tribunal comprehensively considered the Applicants claims, and evidence and documents submitted in support of their claims, and the findings made by the Tribunal were open to the Tribunal on the evidence and materials before it.  It was a matter for the Tribunal to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events.[1]

   [1]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 281-282.

2. In particular, as submitted by the First Respondent, it was open to the Tribunal to find that the Applicant’s evidence concerning her ex-husband’s contact with their son in Australia was contrived and to be satisfied on that basis, that he did not intend to abduct the Second Applicant should the Applicants return to Malaysia. The Tribunal’s findings as to the Applicant’s credit were open to it.  Read fairly and as a whole, the Tribunal did not erroneously require the Applicant to corroborate her claims before they could be accepted.

3. As is often said, the choice and assessment of the weight to be given to country information was a factual matter for the Tribunal.[2] The Tribunal complied with the statutory requirements that it afford natural justice to the Applicants, and there is nothing to indicate that the requirements of the Act were not observed.

   [2] NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10, 11-13.

4. No jurisdictional error attends the decision of the Tribunal. No arguable case for the relief claimed exists. It shall be dismissed with costs under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 21 December 2017