DPK17 v Minister for Immigration

[2020] FCCA 2604

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPK17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2604

Catchwords:
MIGRATION – Application for Protection Visa – consideration of transgender and lesbian profile – whether there was a real chance of serious harm or a real risk of significant harm being suffered by the applicant if returned to Malaysia – adverse credibility findings against applicant – no jurisdictional error on the part of the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1)(b), 5J(1), 36(2)(a), 36(2)(aa).

Cases cited:

CED15 v Minister for Immigration and Border Protection [2018] FCA 451.

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593.

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR

352.

AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261

FCR 503.

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

259.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: DPK17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1743 of 2017

Judgment of: Judge Egan

Hearing date: 7 September 2020

Date of Last Submission: 7 September 2020

Delivered at: Brisbane

Delivered on: 17 September 2020

REPRESENTATION

Counsel for the Applicant: Mr M Albert

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The Amended Application for Review filed on 7 February 2019 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 1743 of 2017

DPK17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a female citizen of Malaysia who is a self-professed Buddhist. She arrived in Australia on 1 July 2015 on a Visitor Visa and then lodged a Protection Visa application on 5 October 2015.

2. On 1 September 2016, the applicant attended an interview before a delegate to the Minister, at which time she elaborated upon claims made by her in her protection visa application. Those submissions were supportive of the proposition that she would be required to modify her behaviour to avoid persecution if she was to be returned to Malaysia. On 30 August 2016, the applicant’s representative provided the delegate with written submissions, as well as submissions in relation to country information concerning the treatment of homosexuals and transgender people in Malaysia.

3. On 5 September 2016, the delegate refused the visa application.

4. On 16 September 2016, the applicant lodged an application for review by the Administrative Appeals Tribunal (‘the Tribunal’) of the decision of the delegate. On 19 July 2017, the applicant attended a hearing before the Tribunal, at which time she was assisted by an interpreter fluent in Mandarin and English.

5. On 25 July 2017, the Tribunal affirmed the decision of the delegate.

6. The applicant filed an Originating Application for Review on 10 August 2017. At the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 7 February 2019, the grounds of which were as follows:

   “Grounds of application

   1. The Tribunal erred in its statutory task in that it did not ‘deal with’ the country information relating to the laws targeting transgender, not homosexual, persons in Malaysia, in circumstances where it accepted the Applicant was a transgender person.

   2. The Tribunal erred by failing to ask the right question, namely whether the Applicant would be at real risk of relevant harm if someone acted against him based on their ‘political motivation’.

   3. The Tribunal erred by failing to take into account a relevant consideration or failed to ask the right question, namely whether the real risk of mental (not physical) harm occasioned by the anticipated conditions on return for this Applicant could amount to significant harm for the purposes of s 36(2)(aa) of the Migration Act 1958 (Cth).”

7. At [5] – [9] of its reasons, the Tribunal set out the relevant criteria for what constituted a well-founded fear of persecution, refugee protection and complementary protection as provided for by ss. 5H(1)(b), 5J(1), 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).

8. The applicant’s claims for protection as set out in her protection visa application were summarised at [12] of the reasons of the Tribunal as follows:

   ·“Ever since she was small she was like a boy. When she was 15 she slowly started to change her appearance by cutting her hair short and wearing male clothing.

   ·Malaysia is an Islamic country and they do not accept homosexuality which is illegal there but she cannot give up because she can’t help liking girls.

   ·She met her current girlfriend in 2012 and they started dating on 4 May 2014. They have been together for a year now.

   ·Whenever they went out people stared and pointed at them. They had to walk separately if they saw the police or an Islamic group.

   ·She worked at restaurants where customers asked if she was a boy or a girl and sometimes said rude words. She was afraid to go to public toilets and once a security guard asked for her ID when she used a women’s toilet. She was treated rudely by police when they checked ID at a Disco because she was dressed like a man.

   ·On 20 May 2015 she and her girlfriend were harassed and molested by a group of ethnic Malay men. When they reported the incident to police and said they were a couple the police asked if they were homosexuals and commented that homosexuality is not recognised. They had to change their story and say they were good friends. Even though they told the police that the people lived near her girlfriend’s house they police said they couldn’t do anything.

   ·She feels her country can’t protect her because it does not recognise homosexuality and her experience showed that the police cannot protect her.”

9. At [14] of its reasons, the Tribunal set out additional matters raised by the applicant in her statutory declaration made on 23 August 2016. Such matters were summarised as follows:

   ·“If she is forced to return to Malaysia she is scared that she will face harm at the hands of the Malaysian authorities and the Malaysian community because of her identity as a lesbian and transgender person.

   ·She is no longer in a relationship with the woman she listed as being a member of her family unit. She intended that this person would come to Australia to be with her but this person’s parents would not allow her to leave Malaysia.

   ·Her parents knew she was a lesbian but her sexuality was never discussed with her family. While her parents were concerned that she might be treated differently or abused because of her appearance, they did not forbid her from dressing in a manly way.

   ·She was bullied badly at school due to her appearance and left at age 16 because she could not handle the bullying anymore. Her parents supported this decision.

   ·She had four different jobs in Malaysia. She was treated differently and experienced discrimination. If she returned to Malaysia she fears she would be denied work at many places because of her appearance and would be looked down upon by customers and the general public.

   ·She feels she is male but has the body of a female. She wants people to see her as a male so dresses in a masculine way. In Malaysia she is forced to be a woman in interactions with the police or the general public.

   ·She realised she was sexually attracted to girls when she was about 15 years old. She had her first sexual experience with a girl she met at school. They did not show their affection for each other in public to avoid gossip, ridicule and bullying. Their families knew they were in a relationship and neither agreed or disagreed with it. Her family let her continue with it but were worried about her being hurt.

   ·She is currently in a new relationship. They do not live together but intend to live together in the future.

   ·Lesbian women are a target to local Malays because of the way they look. They yell out ‘she-males’ or she-boys’ in a mean, hateful way which makes her feel sad and depressed.

   ·She tried to move to different areas in Malaysia to be safe. She moved to [Place A] which has many Chinese people but she was still picked on for looking different to other women. She walked to work and at least three times a week locals would yell out comments when she walked past.”

10. At [17] – [23] of its reasons, the Tribunal recorded the evidence of the applicant at the hearing before the Tribunal as follows:

    a)The applicant had claimed that she had left Malaysia because she was discriminated against and was harmed. She stated that she was bullied. Her parents wanted her to go to Australia. She went to Perth initially with a friend, working on a strawberry farm. She stated that she was supporting herself in Australia with the assistance of one of her mother’s friends who provided her with accommodation and food.

    b)The applicant claimed she was bullied at high school by Muslim students on the basis of her Chinese ethnicity and because of her appearance. She stated she left school at aged 14-15 years, saying that she wore a girl’s uniform but kept her hair very short causing her to be picked on. She stated that she did not have any issues at her predominantly Chinese primary school but that she had problems at high school where 80% of the students were Muslims.

    c)She stated that because of her dress which indicated that she was homosexual, Muslim customers at her place of work did not like dealing with her. She stated that one other member of staff, who was a Muslim, sometimes picker on her and that her colleagues did not want to go to lunch with her. She indicated that similar problems occurred at her next job.

    d)The applicant stated that she started work as a waitress at a Chinese restaurant and that though she didn’t have any problems from Muslims in such restaurant, some older people gave her strange looks and picked on her, asking why she dressed like a male. The applicant stated that she left that job for a new job which had better pay, but that she had also left the new job with people looking at her strangely.

    e)The applicant raised a new issue which she said had happened to her in Malaysia, but was part of the reason that has caused her to leave. The applicant stated that a group of Muslims on motorcycles had forced her to stop when she was driving her car. She believed that she would be robbed and she drove her car forward hitting a motorbike in front of her before driving away. She stated that the Muslims had followed her, but had turned around at a police barricade and ridden away. She stated that the Muslims had waited near her home for her to come out, causing her to stay at home, so that the Muslims could not trace her or ‘smash her’.

    f)The applicant stated that she was in a relationship with a Malaysian woman who was in Australia on a student visa. She stated that she shared a room in a three bedroom home that accommodated ten people in total.

    g)The applicant stated that she had a female body but dressed in a boys look. That comment was made after the Tribunal had asked the applicant about the comment in her statutory declaration that she was a male but had the body of a female.    

11. At [25] of its reasons, the Tribunal correctly identified that the issue on review was whether the applicant had a well-founded fear of being persecuted for one or more of the five reasons as set out in s. 5J(1) of the Act. Section 5J of the Act relevantly provided as follows:

    “Section 5J

    Meaning of well-founded fear of persecution

    (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c) the real chance of persecution relates to all areas of a receivingcountry.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:    For effective protection measures, see section 5LA.

    (3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a) conflict with a characteristic that is fundamental to the person's identity or conscience; or

    (b) conceal an innate or immutable characteristic of the person; or

    (c) without limiting paragraph (a) or (b), require the person to do any of the following:

    (i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii) conceal his or her true race, ethnicity, nationality or country of origin;

    (iii) alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)  conceal a physical, psychological or intellectual disability;

    (v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)  If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)  that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)  the persecution must involve serious harm to the person; and

    (c)  the persecution must involve systematic and discriminatory conduct.

    (5)  Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)  a threat to the person's life or liberty;

    (b)  significant physical harassment of the person;

    (c)  significant physical ill-treatment of the person;

    (d)  significant economic hardship that threatens the person's capacity to subsist;

    (e)  denial of access to basic services, where the denial threatens the person's capacity to subsist;

    (f)  denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

    (6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.”

12. At [28] – [39] inclusive of its reasons, the Tribunal considered the applicant’s claims of past discrimination, bullying and harassment. The Tribunal was accepting of the applicant’s claims, but after weighing up all of the evidence before it, it did not consider that such claims gave rise to a well-founded fear of persecution. The Tribunal found at [37] of its reasons that it did not accept that a confronting incident involving a group of three or more ethnic Malay Muslim men indicated that the applicant would face a real chance of suffering serious harm, or a risk of significant harm, in the future. It was not indicative of systematic harassment.

13. The Tribunal at [39] of its reasons expressed that it did not accept as truthful the applicant’s account relating to her alleged confrontation with a Muslim person whilst she was driving a car, such claim having been raised at a late stage of the visa application process. The conclusions reached by the Tribunal were open on the evidence before it. As Thawley J said at [21] - [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:

    “[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:

    69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.

    70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.

    [22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.

    [23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. 

    [24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”  

Grounds for Review

Ground 1

1. Ground 1 of the Amended Application for Review asserted that the Tribunal had failed to properly exercise jurisdiction in that it did not deal with country information relating to laws targeting transgender people in Malaysia, as opposed to the laws targeting homosexuals. There is no merit to such ground of review.

1. At [42] – [52] inclusive of its reasons, under the heading ‘LGBTI persons in Malaysia’, the Tribunal dealt extensively with gender issues in Malaysia, and how the laws of that nation applied to, and impacted upon, those of gender profiles (whether apparent or not) other than stereotypical male and female heterosexuals.

2. At [43] – [46] inclusive of its reasons, the Tribunal dealt not only with particular provisions of the Penal Code (such as s 377(D)) relating to the commission of an act of gross indecency with another person, either in public or private. The Tribunal also dealt with how the provisions of s 377 of the Penal Code were rarely enforced by the authorities. The Tribunal specifically referred to para 3.95 of the DFAT country information report on Malaysia of July 2016, which report referred to the offences of public indecency and immorality under the ‘Minor Offences Act.’ It did so in the context of transgender individuals such as the applicant. It also dealt with how transgender women were known to have been subjected to physical or sexual violence and degrading treatment by State religious officials, while in custody, by referring to para 3.98 of the July 2016 DFAT country information report. Paragraphs [43] – [46] inclusive of the reasons of the Tribunal provided as follows:

   “[43] The Tribunal notes that article 377 of the Penal Code provides Malaysian laws (as opposed to religious law) with respect to sexual activity. The provisions of this section of the Penal Code target male activity. Article 377A is relevant to men, as this discusses ‘the insertion of the penis into the mouth or anus of another person to be carnal intercourse against the order of nature’. Article 377B indicates that those voluntarily committing carnal intercourse against the order of nature face up to 20 years jail.

   [44] Article 377D of the Penal Code states that ‘Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years’ .

   [45] However, these provisions of section 377 are not enforced by the authorities, there being seven recorded instances in the past 70 years, four of which were specifically against Anwar Ibrahim. It has been reported that the use of these provisions is highly political in nature and they are not used in the ordinary course of matters against individuals. No other provisions of the Penal Code refer to homosexuality, thus being homosexual of itself is not illegal in Malaysia. The Tribunal considers that while the laws exist, they are not used to prosecute women like the applicant who identify and practice as lesbians in Malaysia, and would not be used against the applicant herself.

   [46] The Tribunal also referred to the DFAT Country Information Report Malaysia from July 2016 at the hearing. This report includes the following relevant comments regarding sexual orientation and gender identity in Malaysia.

   3.89 Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is ‘carnal intercourse against the order of nature’. Such activities attract a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated (see ‘Political Opinion (Actual or Imputed)’, above).

   3.90 The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.

   3.91 The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.

   3.92 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.

   3.94 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 the LGBTI community differs, depending on the socio-economic status, the religion and the geographic location of the individual. For instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.

   3.95 Cross-dressing is not technically illegal, however transgender individuals are arrested under the Minor Offenses Act for public indecency and immorality, and, where Muslim, under sharia-based law for impersonating women. These laws are predominantly applied to biological men dressing as women. The National Fatwa Council banned gender reassignment surgery in 1983 and the Registration Department stopped the practice of changing names and gender for transgender individuals on national identity cards.

   3.96 Where transgender women were identifiable as Muslim, and as male, as demonstrated on their national identity card, they were occasionally arrested by state religious authorities or the Royal Malaysian Police. While the majority of arrests occurred in public places, state religious officials occasionally conducted raids on private premises. Members of the Royal Malaysian Police had on occasion accompanied such officials.

   3.97 In October 2015, regarding the case of three Muslim transgender women from Negeri Sembilan, the Federal Court reversed a lower court ruling that had found Negeri Sembilan’s state-level prohibition on men dressing as women to be unconstitutional. The Federal Court advised the defendants to exhaust their case in the sharia court, where it had originated. In June 2015, nine transgender women were convicted by a sharia court in Kelantan state under cross-dressing prohibitions. In2011, a transgender woman was arrested for cross-dressing and was sexually assaulted by religious department officials in Negeri Sembilan. In 2012, religious department officials forcibly entered the home of a transgender woman in Seremban. The woman, a non-Muslim—as confirmed by a check of her national identity card— was not arrested. However, her Muslim transgender friends were arrested for crossdressing.

   3.98 State religious officials have been known to subject transgender women to physical or sexual violence and degrading treatment while in custody. Transgender women are held in male prisons and have occasionally been subjected to sexual assault by wardens or fellow detainees. Societal violence also occurs. On 10 September 2015, Malaysia’s most prominent transgender activist, Nisha Ayub, was brutally beaten by two Indian Malaysian men with iron bars outside her apartment building. She reported the hate crime to police but no suspects have been identified.

   3.99 DFAT assesses transgender individuals, especially Muslim men who either cross-dress as women or identify as transgender would face a high level of official and societal discrimination and are at moderate risk of societal violence.”

3. At [50] of its reasons, the Tribunal recorded that it ‘has taken into account the above country information’, before referring to criminal provisions that could be used against homosexuals in Malaysia. The ‘above country information’ there referred to was most logically that mentioned in paragraph [49] of the reasons. Such paragraph specifically related to US Department of State country information which dealt with human rights practices in Malaysia involving people having transgender, lesbian, gay and bisexual profiles, as well as to Human Rights Watch country information dealing with discrimination against transgender people.

4. The Tribunal had earlier, at [14] of its reasons, recorded that in the applicant’s statutory declaration of 23 August 2016, the applicant had stated that she was a lesbian. [1] The applicant had there also stated that she was a transgender person. At [28] of its reasons, the Tribunal referred to the submissions of the applicant’s former representative dated 30 August 2016, in which the applicant was identified as being a member of the particular social group of ‘Homosexuals in Malaysia’ as well as being a member of the particular social group ‘Transgendered people in Malaysia’. [2]

   [1]        Paragraph 3 of Statutory Declaration dated 23 August 2016 at Court Book (CB) page 95. 

   [2]        CB page 82.

5. It cannot be said that the Tribunal did not ‘deal with’ the relevant country information relating to laws which impacted upon transgender people in Malaysia. The Court notes that there was no independent legal opinion in evidence before the Tribunal from any qualified Malaysian legal expert. The applicant’s submissions were based upon an overly restrictive appreciation of both the role of the Tribunal when assessing the claims before it as well as its findings. As was said by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ at [46]-[47]:

   “[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   [47] 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.”

Ground 2

1. Ground 2 of the Amended Application for Review is a claim that the Tribunal failed to engage on the question of whether the applicant would be at any real risk of harm based upon some ‘political motivation’. Reliance was placed by the applicant upon what was found by the Tribunal at [50] of its reasons, which was as follows:

   “[50] The Tribunal has taken into account the above country information that indicates that there are criminal provisions that can be used against homosexuals in Malaysia. However, the country information indicates that these are infrequently applied except where there has been a political motivation. There is nothing in the applicant’s claims and history that indicates that she has had any political involvement or that there is a real chance or risk she would be charged under these provisions due to any actual or imputed political opinion. The Tribunal finds that the chance or risk that the applicant will be subjected to these criminal provisions is remote.”

2. The reference to political motivation was first raised by the Tribunal at [45] of its reasons in relation to the highly contentious prosecution of Anwar Ibrahim for alleged homosexual conduct during the Presidency of Mahathir Mohamad. Paragraph [45] of the reasons provided as follows:

   “[45] However, these provisions of section 377 are not enforced by the authorities, there being seven recorded instances in the past 70 years, four of which were specifically against Anwar Ibrahim. It has been reported that the use of these provisions is highly political in nature and they are not used in the ordinary course of matters against individuals. No other provisions of the Penal Code refer to homosexuality, thus being homosexual of itself is not illegal in Malaysia. The Tribunal considers that while the laws exist, they are not used to prosecute women like the applicant who identify and practice as lesbians in Malaysia, and would not be used against the applicant herself.”

3. Paragraph [50] of the reasons correctly recorded that there was nothing in the applicant’s claims or history that indicated that she had any relevant political involvement, or that there was a real chance or risk that she would be charged under any penal provision due to any actual or imputed political opinion. In the absence of evidence to the contrary, it was open for the Tribunal to so find as a matter of fact.

4. Further, at [54] – [55] of its reasons, the Tribunal found that after a consideration of the applicant’s particular circumstances, and of relevant country information, both separately and cumulatively, it was satisfied that the applicant had neither a well-founded fear of persecution as required by s. 5J of the Act, nor was a refugee within the meaning of s. 5H of the Act. It also found that the applicant did not meet the relevant complimentary protection criteria. Paragraphs [54] – [55] of the Tribunal’s reasons provided as follows:

   “[54] Considering the applicant’s individual circumstances both separately and cumulatively and the country information as a whole, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant would be persecuted for reasons of her race, religion, nationality, membership of particular social groups comprising homosexuals in Malaysia, and/or lesbians in Malaysia, and/or transgender persons in Malaysia, and/or woman in Malaysia who adopt the appearance of men. The Tribunal finds the applicant’s fear of persecution is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s.5H.

   [55] Considering the applicant’s individual circumstances both separately and cumulatively and the country information as a whole, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that she will suffer significant harm.”

5. At [51] of its reasons, the Tribunal summarised its findings as to whether the applicant faced a real chance of harm or a real risk of significant harm, if returned to Malaysia. It also found that the applicant could live openly in Malaysia as a lesbian, and as a transgender woman who adopted the appearance of a man, without having to modify her behaviour so as to avoid a real chance of persecution, or a real risk of significant harm. The Tribunal said as follows:

   “[51] … Considering all the country information and her individual circumstances, both separately and cumulatively, the Tribunal finds that the applicant could live openly in Malaysia as a lesbian and as a transgender woman who adopts the appearance of a man, without having to modify her behaviour to avoid a real chance of persecution or a real risk of significant harm. In reaching this conclusion the Tribunal has noted the DFAT advice above that it assesses transgender individuals, especially Muslim men who either cross-dress as women or identify as transgender, would face a high level of official and societal discrimination and are at moderate risk of societal violence. Noting the context of the DFAT advice, which the Tribunal finds refers almost exclusively to Muslim men who identify as women, the Tribunal finds that, as the applicant is not Muslim and is a woman who dresses as a man rather than a man who cross-dresses as a woman, she does not face this level of discrimination or risk of societal violence. The Tribunal finds that, considering her personal circumstances, the applicant does not face a real chance of persecution involving serious harm or a real risk of significant harm.”

6. The applicant’s submissions as to ground 2 are without merit.

Ground 3

1. Ground 3 of the Amended Application for Review was a claim that the Tribunal failed to ask the correct question, namely whether there was a real risk of mental harm which would be suffered by the applicant by reason of the occurrence of previously experienced discrimination upon the applicant’s return to Malaysia, and specifically, whether such could amount to significant harm for the purposes of s. 36(2)(aa) of the Act. There is no merit to such claim.

2. First, there was no medical/psychological/psychiatric evidence before the Tribunal which was suggestive of it being likely that the applicant would suffer any mental harm if returned to Malaysia in circumstances where, as it was submitted, she would be subjected to conduct of the same nature as that experienced by her prior to her departure. Individuals vary markedly in their resilience when faced with such matters. So much is trite. The Tribunal therefore had to make its own assessment of how, if at all, the applicant would be effected if similarly discriminated against, harassed or bullied in the reasonably foreseeable future. It assessed the applicant’s claims, and made findings adverse to her. It was entitled to do so.

3. The Tribunal engaged in an active intellectual process as to whether or not there was a real chance that the applicant would suffer serious harm, or a real risk that the applicant would suffer significant harm. The onus was on the applicant to satisfy the Tribunal otherwise, but the applicant failed to do so. [3]

   [3]        Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at 48 per

1. It cannot be said that the submitted risk of future mental harm was other than conjectural in the absence of supporting expert opinion to that effect being before the Tribunal. It was an ambit claim which was not clearly articulated and it was open for the Tribunal to consider that it was not persuasive. The fact that an applicant claims that they had in the past felt depressed as a result of certain conduct directed toward them, or that they were fearful of being depressed if they were returned to their country of origin, is not, without more, a clearly articulated claim. A more precise articulation of a claim is required when complex psychological or psychiatric issues are raised before a Tribunal, especially where the Tribunal is not possessed of qualifications enabling it to confidently rule, one way or another, whether a person will be likely to suffer an adverse psychological or psychiatric event in the reasonably foreseeable future. The applicant in this matter has not put the Tribunal in that position.    

2. It has been held that a Tribunal is only required to consider clearly articulated argument and claims which clearly emerged from the evidence. As was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18]:

   “[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

   ·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

   ·The Tribunal is only required to consider such claims where they are either:

   (a)  the subject of substantial clearly articulated argument, relying on established facts; or

   (b)  clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).

   ·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

   … A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

   (Emphasis added.)

   ·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

   (a)  such a finding is not to be made lightly (NABE at [68]);

   (b)  the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

   (c)   to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

   37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

   38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

   (d)  while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and

   (e)   understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”

3. Second, the Tribunal specifically considered the applicant’s claims that she would suffer serious psychological harm if returned to Malaysia due to her being a transgender person or a homosexual. [4] At [51] of its reasons, the Tribunal found as follows:

   “[51] … The applicant commented that from her experience she would encounter strange looks and discrimination wherever she went. She commented that she was quite afraid to go back as she did not wish to experience Muslim bullying against Chinese again. While the Tribunal accepts that the applicant faces a degree of both official and societal discrimination as a consequence of her status as a lesbian and as a woman who adopts the appearance of a man, the Tribunal does not consider this to constitute either serious harm or significant harm.”

   [4]        Paragraph [28] – [32] inclusive of the Tribunal’s reasons at CB 164.

4. To the extent that the applicant takes issue with the factual findings of the Tribunal, an attempt has been made for this Court to undertake an impermissible merits review of the decision of the Tribunal. As was said by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 - 272:

   “The proper role of a reviewing court

   The Full Court recognised, on the face of the delegate's assessment of the first respondent's claim, "that the delegate correctly directed herself as to the test which she had to apply" (33). Later in its reasons the Full Court noted (34):

   "Undoubtedly the delegate considered Mr Wu to have a genuine fear of persecution for a Convention reason. The question was whether there was objective support for that fear. The delegate was obliged to find that there was if there was a real chance of persecution. The expression 'real chance of persecution' is used in the reasons. We refer to par 4.6(4) as an example. Paragraph 12 ... provides another. The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written."

   In other words, the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities.

   When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker (36). The Court continued (37): "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."

   These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (38). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (39):

   "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."”

5. The Tribunal clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions on the same or similar facts. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:

   “[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

6. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

7. Ground 3 of the Amended Application for Review is without merit.

8. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

9. The Amended Application for Review is dismissed.

10. The Court will hear the parties as to costs.       

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 17 September 2020

         Griffiths, White and Bromwich JJ.