DND18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 553
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DND18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 553
File number: MLG 1955 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 27 June 2023 Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – whether the Tribunal failed to consider the Applicants’ claims, reasoned in an illogical or irrational way and/or identified a wrong issue and asked a wrong question – application dismissed. Legislation: Migration Act 1958 (Cth) ss.5H, 5J, 36, 65, 474, 476 Cases cited: AppellantS395/2022 v Minister for Immigration and Cultural Affairs [2003] HCA 71
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Craig v South Australia (1995) 184 CLR 163
CTY15 v Minister for Immigration and Border Protection [2019] FCA 197
Htun v Minister for Immigration and Multicultural Affairs 233 FCR 136; (2001) 194 ALR 244
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZQRB (2013) 2010 FCR 505
Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287
Minister for Immigration v Border Protection v Stretton [2016] FCAFC 11
MZYXS v MIAC [2013] FCA 614
MZYXS v MIAC [2013] FMCA 13
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124
Plaintiff M1/2021 v Minister for Home Affairs (2022) ALR 417
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
SZSZW v Minister for Immigration and Border Protection (2015) 150 ALD 465
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of hearing: 8 May 2023 Place: Melbourne Counsel for the Applicants: Mr A Healer Solicitor for the Applicants: Holding Redlich Solicitor for the First Respondent: Sparke Helmore ORDERS
MLG 1955 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DND18
First Applicant
DNE18
Second ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
27 June 2023
THE COURT ORDERS THAT:
1.The application as amended on 27 April 2022 be dismissed.
2.The Applicants pay the costs of the First Respondent fixed in the sum of $5,000.
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 MANSINI
IN SUMMARY
In this application for judicial review, the Applicants seek an order to quash the Administrative Appeals Tribunal decision which affirmed the delegate’s decision to refuse them a protection visa.
The Applicants are female citizens of Malaysia, of Chinese Malaysian ethnicity, who claimed to fear harm for reasons that included that they are lesbians who had been threatened with rape. They challenged the Tribunal’s findings that there would be no real risk that the Applicants will be subject to significant harm upon return to Malaysia on grounds that the Tribunal failed to consider all of their claims, was irrational and/or identified a wrong issue.
For the reasons that follow, the application is dismissed with costs.
CONTEXT
Application for a protection visa
The Applicants arrived in Australia on temporary electronic travel visas, some months apart in 2012.
In June 2015, the First Applicant applied for a Protection (Class XA) (subclass 866) visa (protection visa) and named the Second Applicant as her partner who was not raising her own claim for protection.
On 13 November 2015, a delegate of the First Respondent refused the application.
On 22 June 2018, the Tribunal affirmed the delegate’s decision.
The Tribunal’s decision
Assessment of the First Applicant
The Tribunal accepted the First Applicant’s claims about her sexuality, that she is readily perceived to be a lesbian due to her clothing and appearance and in a relationship with the Second Applicant: Reasons, at [31].
The Tribunal expressed concerns about the First Applicant’s claim to fear harm in Malaysia: Reasons at [32]. In the paragraphs that followed, the Tribunal elaborated that:
(a)It did not accept the claim that the First Applicant’s car was damaged because she was a lesbian: at [33];
(b)It accepted the First Applicant suffered discrimination from her neighbours for being a lesbian but that this did not rise to the level of persecution: at [34];
(c)It did not accept that the reason the First Applicant was placed in a back of house role in her job was because of her looks, rather the Tribunal found it was due to her promotion to a managerial role: at [35];
(d)It found the claim that the First Applicant’s parents were not happy with her being a lesbian to be exaggerated as the Applicants lived together in the First Applicant’s parent’s house: at [36]; and
(e)It did not accept the claim that a neighbour had told the First Applicant she would call the police when she was having sex because it made no sense in light of her other evidence about coming home in the dark so that people would not see her and as she was living with her parents at the time: at [37].
Pertinent to the grounds of review, the Tribunal then made the following findings at [38] of its Reasons:
38. The applicant claims that one time her and her partner were ‘almost raped’ by Muslim men in the park. The men said that because they were lesbians they didn't know what it was like to have a real man. When questioned further about this incident the applicant claims she was in the park with her partner and a group of Muslim men stated shouting at them that they were lesbians and that they would show them what a real man was all about. The applicants were not physically touched or harmed. The Tribunal has no doubt that the applicant and her partner were frightened by the experience but nothing in her claim rose to the level of being raped, as there was only verbal threats nothing physical happened. When asked if she went to the police to report this she said no as the police may arrest her for being a lesbian.
(sic.)
The Tribunal considered country information showed that, whilst the LGBTI community faced a moderate risk of official and societal discrimination it was mostly centred on Muslims and gay men: Reasons, at [39]. The Tribunal’s Reasons at this part contained an extract of the Department of Foreign Affairs and Trade (DFAT) country information in which DFAT had assessed:
DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by LGBTI individuals differs according to their socio-economic status, religion, geographic location and degree of openness. Some well-educated urban Malaysians of high socio-economic status can be open about their sexuality within their family and social circles. For others, previous societal acceptance of certain roles carved out in Malaysian society for 'flamboyant individuals', such as planning weddings and events, have largely disappeared. Many LGBTI individuals, especially Muslims, hide their identity to avoid harassment.
The Tribunal also noted s.377 of the Penal Code of Malaysian laws with respect to sexual activity which it considered were rarely enforced, not used against any women and would not be used against the Applicants: Reasons, at [40]-[41].
The First Applicant’s reasons for her delay in lodging the protection visa application were considered. In this respect, the Tribunal did not accept that the First Applicant was unaware of her ability to so apply and rather considered she did not do so because she does not fear returning to Malaysia because of her sexuality and does not have a subjective fear of harm arising out of her sexual identity: Reasons, at [42]-[44].
Given those findings, the Tribunal did not accept that the First Applicant will face a real chance of persecution from her neighbours, Muslims or the authorities if she returns to Malaysia and therefore rejected her claims to face a well-founded fear of persecution pursuant to s.5J(1) of the Act and was not a refugee pursuant to s.5H(1) of the Act (relevant to its s.36(2)(a) assessment).
The Tribunal then noted the First Applicant’s claims to fear being reported to the authorities and detained if people find out about her sexuality, to fear persecution by the ministry of religion if people report her and to fear torture from Muslims, being raped by Muslims and of going to jail if reported. In this paragraph, it referred again to the country information that DFAT assessed LGBTI individuals, particularly Muslims, faced a moderate risk of official and societal discrimination on a day-to-day basis but not persecution and torture. The Tribunal stated it was mindful of the long term and psychological impacts that societal discrimination can have but concluded no real risk to the First Applicant as to meet the definitions of torture, cruel or inhumane treatment or punishment, degrading treatment or punishment: Reasons, at [46]. Therefore the Tribunal rejected the Applicant’s claim of real risk to suffer significant harm pursuant to s.36(2)(aa) of the Act.
Assessment of the Second Applicant
The Tribunal accepted the claims that the Second Applicant was a lesbian and in a relationship with the First Applicant: Reasons, at [50].
The Tribunal accepted the Second Applicant’s account given at the Tribunal hearing of having been harassed in the park by Muslim men. The Tribunal found the account was the same as that of the First Applicant and reiterated its earlier findings in that respect: Reasons, at [52].
The Tribunal did not accept the claims that the Second Applicant’s partner (the First Applicant)’s car was damaged or that children had thrown stones at the Second Applicant because she was a lesbian: Reasons, at [53]-[54].
At [55], the Tribunal referred to the Second Applicant’s claim that the Applicants had tried holding hands in the park but someone said they would call the police, before noting that:
...Malaysia is a more conservative country and public displays of affection are discouraged including from heterosexual couples and the Tribunal is not satisfied that the more conservative social environment and attitudes towards lesbians in Malaysia will result in serious harm to the applicant.
The Tribunal also found the Second Applicant to have family support in Malaysia: Reasons, at [56].
Given those findings, the Tribunal did not accept that the Second Applicant satisfied s.36(2)(a) or s.36(2)(aa) and found she did not satisfy the criterion at s.36(2).
THIS APPLICATION FOR JUDICIAL REVIEW
On 6 July 2018, the Applicants filed the originating application for judicial review.
By the amended application filed on 20 April 2022, receipt of which was not opposed, the Applicants sought relief in the form of an order that the decision of the Tribunal be quashed and a writ of mandamus be directed to the Tribunal requiring it to determine the Applicants’ application according to law. They cited the following 3 points under the heading “Grounds of application”:
1.The Second Respondent committed jurisdictional error by failing to consider all of the Applicants’ claims and/or their component integers.
Particulars
The Second Respondent failed to consider:
a.the risk that the Applicants would again be threatened with rape because they are lesbians (see at [38] & [52]); and
b.whether the discrimination the Second Respondent found at [34] the Applicants to have suffered because they are lesbians amounted to inhumane or degrading treatment.
2.The Second Respondent committed jurisdictional error by reasoning in a manner that was internally inconsistent such that it was illogical or irrational.
Particulars
The Second Respondent concluded at [46] that there is “no real risk” the Applicants would be subject to torture, when it elsewhere accepted at [38] and [52] that the Applicants were threatened with rape because they are lesbians.
3.The Second Respondent committed jurisdictional error by identifying a wrong issue and asking a wrong question.
Particulars
The Second Respondent considered at [55] whether the Applicants might avoid harm by behaving more discreetly, when it ought to have considered whether the need for the Applicants to modify their behaviour, and the consequences of failure to do so, amounts to persecution or relevant harm.
Statutory framework
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds – the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175.
The grant of a protection visa is confined by the criteria at s.36 of the Act. Relevant to the present application, at s.36(2)(a) and (aa), the Act provides that “a” criterion for a protection visa is that the applicant for the visa is:
·a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a “refugee”: s.36(2)(a), see also ss.5H and 5J for the meaning of “refugee” and meaning of “well-founded fear of persecution”; or
·a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer “significant harm”: s.36(2)(aa).
A non-citizen will suffer “significant” harm if the non-citizen will be subjected to “torture”: s.36(2A)(c). “Torture” is in turn defined to mean:
“torture” means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Convenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
An administrative decision maker is required to refuse to issue a visa absent the requisite satisfaction that the criteria applicable to the visa application are satisfied: s.65.
As concerns the present application, the statutory framework and principles applicable to the conduct of a Part 7 Review by the Tribunal are outlined below.
Ground 1
Respective submissions
By Ground 1, the Applicants contended a failure on the part of the Tribunal to consider all of their claims and/or their component integers, More specifically:
(a)By particular (a), that the Tribunal failed to consider the risk that the Applicants would again (in the future) be threatened with rape because they are lesbians, which was a question squarely raised on the material before it (with reference to [38] and [52]); and
(b)By particular (b), that the Tribunal failed to consider whether the discrimination the Tribunal found the Applicants had suffered because they are lesbians (at [34]) amounted to inhumane or degrading treatment.
By their oral submissions, the Applicants accepted that it may be possible to identify general findings which subsumed these matters but asked the Court to find that the Tribunal’s Reasons lacked the requisite active intellectual engagement in relation to the particularised claims.
The First Respondent argued that, when regard is had to the manner in which the Applicants’ claims were advanced and when the Reasons are read as a whole, the Tribunal had considered and disposed of these claims as it was obliged to do with regard to the criteria at ss.36(2)(a) and 36(2)(aa) of the Act.
Was there a failure to consider the claims in this case?
It is not contentious that a failure to consider an applicant’s claims and their component integers may constitute a jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs 233 FCR 136; (2001) 194 ALR 244 at [42].
The Applicants contended that the Tribunal’s obligation to consider claims extends to those claims that, even if not expressly articulated by an applicant as claims for protection, nonetheless arise tolerably clearly from the material itself: citing NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J) (affirmed in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124); CTY15 v Minister for Immigration and Border Protection [2019] FCA 197 at [49]; Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287 at [70].
The Applicants relied on SZSZW v Minister for Immigration and Border Protection (2015) 150 ALD 465 (SZSZW) at [17] for the proposition that a claim is not considered, in a requisite sense, unless the administrative decision maker has engaged in an active intellectual process. In that case, the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [38] was cited where it held:
That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant…
The decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [47] was also referred to as authority for the proposition that:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
More recently, in Plaintiff M1/2021 v Minister for Home Affairs (2022) ALR 417 (Plaintiff M1/2021), the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) held at [26]-[27]:
Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.See also Plaintiff M1/2021 at [78] (Edelman J) and [106] (Gleeson J).
Without detracting from the importance of the principle which requires administrative decision makers to engage properly with the claims and evidence before them, the further point made by the High Court in Plaintiff M1/2021 and earlier authorities is that the requisite level of engagement by the decision-maker with “the representations must occur within the bounds of rationality and reasonableness”, and at the same time, “what is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations”: Plaintiff M1/2021 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ, footnotes omitted). In short, a proportionate response is to be expected of decision-makers that reflect the nature of the claims and evidence adduced by the visa applicant.
In the present case, the Tribunal did not completely fail to consider, ignore or overlook the Applicants’ claims as particularised in this first ground of review.
Particular (a)
It was unclear to me whether the Applicants contended that the Tribunal was obliged to have considered the risk of a future threat of rape in relation to both the refugee and complementary protection assessments. The Applicants being self-represented before the Tribunal and the First Applicant having raised the claim subject of particular (a) for the first time at the Tribunal hearing, it may also have been unclear to the Tribunal. Indeed the claim put to the Tribunal was recorded in its Reasons as the First Applicant’s fear of being raped (as distinct from being threatened as put in these grounds of review) by Muslims on account of the Applicants’ sexuality. For present purposes and taking the Applicants’ case at its highest, it may be accepted that the Tribunal’s finding of a prior threat properly gave rise to consideration of future risk of threatened or actual rape even if not expressly put by the Applicants in their materials.
As will be apparent, the Reasons disclose the Tribunal’s consideration of the Applicants’ claims about being threatened by a group of Muslim men: at [25] and [38] of its Reasons. The Tribunal also considered country information before it which showed a moderate risk of official and societal discrimination of LGBTI community mostly centred on Muslims and gay men and the operation and enforcement of local laws: at [39]-[41].
At [44] the Tribunal found that the lack of urgency and the contrived reasons for the delay in making the protection visa application meant that the First Applicant:
·does not fear returning to Malaysia because of her sexuality; and
·has no subjective fear of harm arising from her sexual identity.
The Tribunal’s conclusion about the claim to fear being raped is then found:
(a)In relation to its refugee assessment, expressly at [45] (and [49]) of the Reasons wherein the claim was rejected by reference to its earlier findings and the statutory definitions of “a well-founded fear of persecution” at s.5J(1) of the Act and “refugee” at s.5H(1) of the Act; and
(b)In relation to its complementary protection assessment, expressly at [46] (and [48]-[49]) of the Reasons wherein the Tribunal was mindful of the moderate risk of official and societal discrimination on a day-to-day basis but found this was not persecution and torture and ultimately the claim was rejected by reference to the decision maker’s consideration of its earlier findings, the country information before the Tribunal with reference to the statutory definition of “torture”.
In my view, the Tribunal’s response to the claim particularised at (a) was proportionate when regard is had to the nature of the claims and the evidence adduced by the Applicants.
For its refugee assessment, the Tribunal properly turned its mind to the future fear of harm and risk having made findings where it accepted there was a past threat of rape in the park. It simply did not accept, on the whole of the evidence before it and with emphasis on the delay in seeking the protection visa, that the First Applicant had a fear of returning to Malaysia or subjective fear of harm on account of her sexuality. To say that the future fear claim was overlooked in the context of the refugee assessment would be to draw an inference too readily – and, in doing so, to disregard the findings at paragraph [44] of the Reasons which reasoned by reference to her other evidence that the First Applicant did not hold a fear of returning to Malaysia or a subjective fear of harm arising from her sexuality. Those findings at [44] were plainly an important basis for the conclusion at [45].
Further, the claim to fear of future rape was expressly considered in the context of the complementary protection assessment.
These were findings that the Tribunal was entitled to make on the materials before it and I discern no error in this respect.
Particular (b)
In relation to particular (b), the Tribunal’s alleged failure to consider was connected with the definitions of “inhuman treatment or degrading treatment” which defined terms are relevant to whether there is a real risk of “significant harm” within the meaning of s.36(2A) and for the purposes of the complementary protection assessment at s.36(2)(aa).
The Tribunal found at [34] that the First Applicant had been discriminated against for being a lesbian but that none of the claimed incidences rose to the level of persecution.
Whether a person has a “well-founded fear of persecution” is relevant to the refugee assessment at s.36(2)(a). However, the real risk of significant harm and real chance of persecution involving serious harm applicable to those respective statutory assessments are commonly accepted as attracting the same threshold and therefore the same reasoning would apply: Minister for Immigration and Citizenship v SZQRB (2013) 2010 FCR 505, see also MZYXS v MIAC [2013] FMCA 13 (upheld on appeal in MZYXS v MIAC [2013] FCA 614).
These claims subject of particular (b) were ultimately rejected (in relation to each of s.36(2)(a) and (aa), at paragraphs [45] and [46]-[47] respectively) by reference to the country information that was before the Tribunal which reflected a moderate risk of official and societal discrimination on a day-to-day basis and not persecution and torture. There, the Tribunal was expressly mindful of the risk of official and societal discrimination that the Applicants as LGBTI individuals would face on return to Malaysia (which it found to be “moderate” again in reliance on the country information that was before it). Also at [46], the Tribunal concluded that such societal discrimination, even in the long term, would not meet the definition of cruel or inhuman treatment or punishment or the definition of degrading treatment or punishment.
It may be accepted that the Tribunal’s analysis of the defined terms at s.36(2A)(d) and (e) referenced in its conclusion at [46] (including inhuman or degrading treatment) was brief. However those conclusions at [46] plainly follow the prior reasoning and do not stand alone when the Tribunal’s Reasons are read as a whole. Having regard to the nature of the claims and the evidence before the Tribunal, in my view nothing more was required in order to discharge its statutory obligation.
Resolution of Ground 1
Mere disagreement with the Tribunal’s interpretation of the country information and application of the evidence does not amount to jurisdictional error. Here, the Tribunal considered the claims including in the context of its earlier findings but came to a conclusion contrary to that advanced. I do not discern a failure to consider a relevant consideration, including to consider with an active intellectual engagement, the material before the Tribunal in relation to claimed fear or risk of threatened or actual rape and whether the discrimination found to have occurred amounted to inhumane or degrading treatment.
For completeness, although I did not understand this ground to be put in this way, to the extent that the claims as particularised were not directly pressed by the Second Applicant that was because the protection visa application named the Second Applicant as partner who was not raising her own claims for protection. Similarly, it follows that the Tribunal’s findings in relation to the Second Applicant did not require further consideration.
This first ground does not succeed.
Ground 2
Respective submissions
There was understood to be some overlap between this ground 2 and the first ground. The Applicants contended that the illogicality or irrationality arose from the Tribunal’s findings:
·on the one hand, that the Applicants were threatened with rape on account of their sexuality (at [38] and [52]); and yet
·on the other hand, that there was “no real risk” of torture (at [46]).
The Applicants said it was necessary to identify a logical connection to the evidence with the finding at [46] but it is simply not there.
The First Respondent argued this is a case where the decision-maker was reasonably able to come to the conclusion that the Tribunal did, being a conclusion about which reasonable minds may differ and therefore no error of jurisdiction is established.
Was it illogical or irrational to conclude no real risk of torture?
There was no dispute about the established principle that an illogical or irrational decision is to be distinguished from a scenario about which reasonable minds may differ: citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [131].
In their written submissions, the First Respondent relied on Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] in which the Full Court of the Federal Court referred to Minister for Immigration v Border Protection v Stretton [2016] FCAFC 11 and confirmed that the relevant question is whether a decision maker could reasonably come to the conclusion that they did. Further, in support of the principle that if a conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.
This ground 2 was specifically pleaded as related to the Tribunal’s finding at [46] that there was no real risk the Applicants will be subjected to torture. By their written submissions, the Applicants also interchangeably used the terminology of no real risk the Applicants would be subject to persecution or torture.
For present purposes, taking the Applicants’ case at its highest, it may be accepted that the Applicants’ claimed fear or risk of threatened or actual rape could constitute an instance(s) of serious harm as defined at s.5J(5) (in the form of physical harassment, physical ill-treatment and/or a threat to their liberty) or significant harm (including torture) as defined at s.36(2A). However the finding at [46] related only to the latter which is relevant to the complementary protection assessment (s.36(2)(aa)).
As will be apparent from the reasons above at ground 1, the Tribunal found that the Applicants had been subject of a prior threat of rape by Muslim men on account of their sexuality (at [38] and [52]).
However, on the evidence before it and placing some emphasis on the delay in applying for the protection visa, the Tribunal reasoned that the First Applicant did not hold a fear of returning to Malaysia or a subjective fear of harm arising from her sexuality. Those findings at [44] were plainly an important basis for the conclusion about the refugee assessment (s.36(2)(a), at [45]) and were not challenged in this review. The appropriate weight of emphasis to be placed on the evidence about the delay might well have differed in the mind of another decision-maker. On balance, I am prepared to accept that it was open to the Tribunal to so find and therefore, notwithstanding the positive finding of the prior threat, that there was no real chance of persecution from her neighbours, Muslims or the authorities as to engage the statutory definition of well-founded fear of persecution at s.5J(1) of the Act.
A separate finding was made with express reference to this claimed fear in relation to the complementary protection assessment (s.36(2)(aa), at [46]) including with regard to the Tribunal’s consideration of:
·the country information, which the Tribunal interpreted to mean that DFAT assessed a moderate risk of official and societal discrimination on a day-to-day basis for LGBTI individuals particularly Muslims, but not persecution and torture; and
·the long-term psychological impacts that societal discrimination may have.
Certainly reasonable minds may differ as to those matters. I did not understand the claim to be put in this way and without more there is no basis to find that it was not available to the Tribunal to interpret the DFAT country information as establishing a moderate risk (as described at [46] of the Reasons) but not persecution and torture. In my view, even having made a finding about the past threat of rape, the materials before the Tribunal did not disentitle it from reasonably coming to the conclusion that it did - especially absent contradictory country (or other credible) information in relation to the risk of discrimination for LGBTI individuals and the long-term impacts of societal discrimination.
That reasonable minds may differ does not underscore a finding of illogical or irrational reasoning by the Tribunal.
Resolution of Ground 2
Accordingly, I am not persuaded that relevant error has been demonstrated under ground 2.
Ground 3
Respective submissions
The Applicants contended that the Tribunal had identified a wrong issue or asked a wrong question in considering, at [55] of its Reasons, whether the Applicants might avoid harm by behaving more discreetly. They said this was the incorrect approach in light of the exemption at s.5J(3)(c)(vi) which does not require a modification as to alter sexual orientation or conceal sexual orientation and on the principles enunciated in AppellantS395/2022 v Minister for Immigration and Cultural Affairs [2003] HCA 71 (S395).
Rather, the Applicants asked the Court to find that the correct question to be asked was whether the need for the Applicants to modify their behaviour and consequences of this amounted to a persecution or relevant harm.
The First Respondent essentially argued that the Applicants had misconstrued the Tribunal’s Reasons which are distinguishable from S395 because the Tribunal here did not find that the Applicants would be required to alter their sexual orientation or modify a characteristic fundamental to their identity.
Did the Tribunal identify the wrong issue or ask itself the wrong question?
It may be accepted that the decision in S395 stands for the principle that the 1951 Convention relating to the Status of Refugees does not give protection to membership of a particular social group if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution: per McHugh and Kirby JJ at [40] – see also at [43] (similarly expressed by Gummow and Hayne JJ at [88]):
In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm.
This ground 3 related to the Tribunal’s refugee assessment (s.36(2)(a)).
Relevant to that assessment, the meaning of well-founded fear of persecution is defined at s.5J of the Act. It excludes a person who could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country: s.5J(3). There is a further carve out so that the exclusion does not apply to where it would require the person to alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status: s.5J(3)(c)(vi).
The relevant paragraph of the Tribunal’s Reasons is worth extracting in full:
55. The applicant claims they tried holding hands in the park but someone said they will call the police. The Tribunal notes that Malaysia is a more conservative country and public displays of affection are discouraged including from heterosexual couples and the Tribunal is not satisfied that the more conservative social environment and attitudes towards lesbians in Malaysia will result in serious harm to the applicant.
The Tribunal also referred in its Reasons to country information earlier referenced (at paragraph 11 of this judgment). This included DFAT’s assessment that treatment of LGBTI individuals in Malaysia differs according to their socio-economic status, religion, geographic location and degree of openness; some can be open about their sexuality within family and social circles; and many, especially Muslims, hide their identity to avoid harassment.
It is apparent by those parts of the Reasons at [39] and [55] that the Tribunal turned its mind to whether the Applicants were required to modify their behaviour as to alter or conceal their true sexual orientation. That was a permissible and appropriate question to ask having regard to s.5J(3) and the authority in S395.
There is no basis to find, as the Applicants asked the Court to do, that the Tribunal assumed that the Applicants had modified their behaviour and that modification would continue and would need to continue. Rather, the Tribunal at [32]-[37] rejected the First Applicant’s claimed incidences of harassment (which, it may be accepted, could be characterised as claims of alleged modifications on account of her sexuality or sexual orientation) including of damage to her car, that she was moved to a back of house role and that she came home at night.
The Tribunal then, after considering the DFAT country information and the Penal Code of Malaysian laws provisions, these incidences and the delay in making the Protection visa application, turned its mind to what would happen to the Applicants upon return to Malaysia. The Tribunal’s Reasons in question are distinguishable from that in S395 in that the Tribunal here did not expressly find that it was not possible for the Applicants to live openly as female lesbians or as couple in Malaysia (the case of S395 involved a finding that it was not possible to live openly as a homosexual in Bangladesh). To the contrary, the penal code was found would not be applied to the Applicants as women.
Further, the Tribunal here concluded that public displays of affection are discouraged in Malaysia without distinction. For completeness, it was not expressly plead but to the extent that the Tribunal found that the cultural conservatism in terms of public displays of affection in Malaysia is indiscriminate, and there is no distinction on the basis of sexual orientation, I discern no error in this respect. That the Tribunal had earlier extracted country information which concluded that many LGBTI individuals, especially Muslims, hide their identity to avoid harassment discloses that consideration was given to this country information but falls well short of a finding by the Tribunal.
There is no basis to find (whether explicitly on the face of the Reasons or implicitly) that the Tribunal found that the Applicants would be required to alter their sexual orientation or modify a characteristic that was fundamental to their identity or conscience in order to avoid persecution.
Resolution of ground 3
The third ground does not establish jurisdictional error.
CONCLUSION
For the above reasons, the application for review is dismissed with costs.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 27 June 2023
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