DPS17 v Minister for Home Affairs

[2019] FCA 754

FEDERAL COURT OF AUSTRALIA

DPS17 v Minister for Home Affairs [2019] FCA 754

Appeal from:	DPS17 v Minister for Immigration & Anor [2018] FCCA 3455
File number:	NSD 2126 of 2018
Judge:	YATES J
Date of judgment:	27 May 2019
Catchwords:	MIGRATION – appeal from judgment of Federal Circuit Court – no error demonstrated – appeal dismissed
Legislation:	Migration Act 1958 (Cth), s 5J
Date of hearing:	20 May 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	29
Counsel for the Appellant:	Mr D Godwin
Solicitor for the First Respondent:	Mr A Keevers of Sparke Helmore

ORDERS

NSD 2126 of 2018

BETWEEN:

DPS17

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	27 MAY 2019

THE COURT ORDERS THAT:

1.Leave to file a further amended notice of appeal be refused.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

INTRODUCTION

1. This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court)  given on 29 October 2018, which dismissed the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal).  By its decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (now the Minister for Home Affairs) (the Minister) not to grant the appellant a protection visa.

   BACKGROUND

2. The primary judge recorded the following facts.

3. The appellant is a citizen of Malaysia.  She arrived in Australia on 13 December 2013 on a visa which remained valid until 23 March 2014.  Thereafter, the appellant remained in Australia unlawfully until 12 April 2017, when she was located and detained.  On 5 May 2017, the appellant lodged her application for the protection visa.  On 24 May 2017, the delegate refused to grant the protection visa on the basis of adverse credibility findings.

4. On 29 May 2017, the appellant applied to the Tribunal to review the delegate’s decision.  On 11 July 2017, the appellant appeared before the Tribunal to give evidence and present arguments.  On 18 July 2017, the Tribunal affirmed the decision under review.

5. The primary judge recorded that the appellant made the following claims in her protection visa application:

   (a)She was born in Malaysia, was of Malaysian ethnicity and was a Christian. 

   (b)She had worked as a sex worker in Australia.

   (c)She left Malaysia because she feared her ex-husband who had been violent to her, and also threatened and beat her. 

   (d)She miscarried after she was beaten and she feared she would be killed by her ex-husband if she returned to Malaysia.

   (e)She would be excluded from society in Malaysia because she became a sex worker in Australia and came from a Christian family.

   (f)She had no place to stay in Malaysia as all her belongings had been burnt by her ex-husband.

   (g)She self-harmed in April 2017 because she had “lost hope in [her] life”.

   (h)There were many cases of violence against women in Malaysia which were not reported because the authorities did not “act promptly or not at all”.

6. Before the Tribunal, the appellant advanced a new claim that she was at risk of harm because of her Chinese ethnicity.

7. The Tribunal accepted that the appellant had been the victim of domestic violence at the hands of her former husband in Malaysia.  It concluded, however, that there was no real chance of that harm reoccurring.  As the primary judge recorded, this was essentially for two reasons.  First, the appellant had lived in Malaysia for two years prior to her departure to Australia without suffering any serious harm at her former husband’s hands.  Secondly, there had been a considerable period of time since the appellant’s departure from Malaysia. 

8. At the hearing of her application for judicial review before the Federal Circuit Court, the appellant, who was legally represented, advanced one ground of her filed application, namely that the Tribunal failed to consider and take into account a relevant consideration: Ground 1.  This ground was not particularised in the filed application, but was explained in submissions to the Federal Circuit Court as being that the Tribunal failed to take into account the appellant’s claim that she was a member of a particular social group—women in Malaysia—and it was for this reason that she would be at risk of harm in the form of domestic violence.  The appellant argued that the Tribunal failed to deal with the question of her membership of the particular social group, so framed, and that this led the Tribunal not to properly consider the real question of whether the appellant had a well-founded fear of persecution in Malaysia. 

9. The primary judge rejected this contention and found that no jurisdictional error had been demonstrated. In reaching this conclusion, the primary judge referred to the meaning of “well-founded fear of persecution” in s 5J of the Migration Act 1958 (Cth) (the Act) and noted that it contains cumulative requirements, two of which are, relevantly, that the applicant fears persecution for one of the reasons stipulated in s 5J(1)(a) of the Act; and that there is a real chance of the applicant being persecuted in all areas of the receiving country for one of those reasons (s 5J(1)(c) of the Act). The primary judge noted that the Tribunal rested its conclusion on the domestic violence claim on whether there was a real chance of the feared harm reoccurring. The primary judge further noted the Tribunal’s conclusion that there was no real chance of that harm, and found that this conclusion was open to the Tribunal for the reasons it gave. The primary judge found that the Tribunal’s conclusion was sufficient to show that the appellant could not establish the requirements of s 5J of the Act. There was no need for the Tribunal to consider whether or not the feared persecution was for one of the grounds set out in s 5J(1)(a) of the Act.

   THE APPEAL

   The grounds

10. The appellant filed a notice of appeal on 19 November 2018.  She filed an amended notice of appeal on 16 January 2019.  She now seeks to file a further amended notice of appeal containing the following ground as the only ground on which she relies:

    The primary judge should have found that the Tribunal did not complete the exercise of its jurisdiction because it did not address the question of whether the applicant would face harm from her husband in Malaysia if she sought access to her children from him without using legal proceedings.

11. This ground was not raised in the Federal Circuit Court.  Leave is required to raise it now.  I will return to consider whether leave should be granted.  In the meantime, I will consider its merits.  Before doing so, I should record that it can hardly be said that the primary judge erred by not making a finding he was never asked to make.

    Further facts

12. The appellant’s case is that the Tribunal failed to deal with all the bases on which she feared harm, and so had not completed the exercise of its jurisdiction.

13. In order to address that proposition, it is necessary to refer to further facts, which were either found or contemplated by the Tribunal.  It was not necessary for the primary judge to record these matters given the way in which the application for judicial review proceeded before him.

14. The appellant married her former husband in 2008.  They divorced in May 2011.  They have two daughters, who were born in May 2008 and December 2010, respectively.  As I have noted, the Tribunal accepted that the appellant suffered domestic violence at the hands of her former husband.  It seems that, on occasion, and up until at least May 2011, the appellant sought refuge from him by staying with friends.  The Tribunal found that this violence ceased in late 2011. 

15. In around November 2011, the appellant attempted unsuccessfully to travel to Australia with her two daughters.  It seems that it was around this time that the appellant last spoke to her former husband.  The appellant was refused entry to Australia.

16. The appellant lived at her parents’ home in Kuantan, Pahang, occasionally in 2012 and full-time in 2013.  She again left Malaysia in late 2013, this time without her children.  As I have recorded, she arrived in Australia in December 2013.  She left the children in the care of her parents. 

17. From the time she arrived in Australia up to June 2016, the appellant sent money to her family in Malaysia.  When this ceased, her parents could no longer maintain the two children.  The appellant said that her former husband then forcibly took the two children from her parents in June 2016.  She said that she has not seen them since 2013 and has not spoken to them since early 2016. 

18. Although the appellant maintained that her former husband had forcibly taken the children, the Tribunal was satisfied that it was more likely that he obtained lawful custody of them due (at least in part) to the appellant’s lengthy absence from Malaysia. 

19. The Tribunal recorded at [44] of its Decision Record that the appellant had put to it that, if she returned to Malaysia, she would not be able to see her children or that, if she did seek to see them, she may also have to see her former husband again.

20. In this connection, the Tribunal said: 

    56.Next, at hearing the applicant said that if she returned to Malaysia, she would never see her two daughters again (at least without having to speak to her ex-husband). The Tribunal then respectfully put to her that if she remained in Australia (as she said she wished to do), her ex­husband would (presumably) never allow the children to travel from Malaysia to Australia in order to see her. Also that she had not seen her children since December 2013 and she had last spoken to them in early 2016. The applicant did not dispute this. In these circumstances, if the applicant did not see her children in Malaysia (either because she was not able to convince her ex-husband to voluntarily allow her to do so or because she could not afford the legal fees to force her ex-husband to allow her to do so), while this is harm, I do not accept it gives rise to serious harm for this applicant (she would still prefer to remain in Australia).

    57.Next, the Tribunal notes that some single mothers cannot take custody and alimony cases to court because they cannot afford the legal fees. It may be the applicant would not therefore be able to pursue any legal proceedings in Malaysia. If this is correct, I am not satisfied that an essential and significant reason for such harm, is for any of the prescribed grounds (or that there is otherwise any intent to harm the applicant personally).

    58.Next, if the applicant did qualify for (ie) legal aid in Malaysia, I presume that any legal effort to have access to her children could be undertaken without her husband again knowing where she resided (though I accept she may be forced to speak to her ex-husband in such proceedings). She did say that her husband could locate her using new technology, but the Tribunal notes he had not done so in the two years immediately prior to her departure. The country information about seeking custody of children in Malaysia stated:

    Can I get custody of my children if they are under my husband's care now and I have not seen them for some time? 

    A: You can, but you must be able to give good reasons for not having seen them so far (e.g. if you were prevented by your husband's family from having access to them). The court's main concern will be whether it will be better for the children's well-being to remain under your husband's care or be taken and put under your care and whether a change of custody will be good for them.

    Am I automatically entitled to custody of my children if they are seven years' old or less?

    A: No, not always. Although the law favours the mother if the child is seven or less, the Court may still award custody to the father if it can be proven that you had neglected the children or been incompetent when you were still living together.

    …

    If I do not get custody of my children will I at least be allowed to see them?

    A: Yes, the court will usually make an order giving you access to the children on a regular basis and that may include having the opportunity to take them home to stay with you for weekends, school holidays etc. The court will consider your proposals for access and make an order that is best suited for the circumstances.

    59.The applicant's daughters were born in May 2008 and December 2010. Only one is currently under seven years of age (but only by a few months). Respectfully, it is unclear whether the applicant would be successful should she seek custody of her children in Malaysia. If she did not obtain custody, the Tribunal notes the applicant could pursue access. That being said, and as stated elsewhere, the Tribunal notes the applicant's stated preference to remain in Australia, where I am satisfied she would not see her daughters at all, or possibly, for many years. Also and again, I am not satisfied that an essential and significant reason for any such harm, is for any of the prescribed grounds (or that there is otherwise any intent to harm the applicant personally).

21. The Tribunal then turned to the question of domestic violence in Malaysia: 

    60.Next, the evidence about domestic violence in Malaysia includes that there is significant under­reporting because of traditional beliefs in the sanctity and privacy of marriage. Malaysian law does however prohibit domestic violence, including physical injury and mental, emotional and psychological abuse. Victims can obtain protection orders which attract a prison sentence of up to one year or a fine of RM2,000 (approximately AUD660) if breached. In the present case, the applicant is no longer married. The law also prohibits similar violence to persons who are not married (though ex-husbands can commit violent acts against ex-wives). However, given the Tribunal is satisfied the ex-husband did not harm, harass or even question the applicant in the two years immediately prior to her departure, I am not satisfied that she would suffer serious harm in Malaysia, for any reason discussed herein.

    61.Next, it may be the applicant was claiming that merely taking legal proceedings against her ex­husband would give rise to a real chance of her suffering serious harm. However, given he did not even attempt to question her in the two years immediately prior to her departing Malaysia, I do not accept this is correct. Further, though efforts have been made to remedy corruption in the Royal Malaysian Police (RMP), credible local and international sources still consider the RMP to be a professional and effective police force.  In the circumstances, I am not satisfied the applicant has a real chance of suffering serious harm from her ex-husband, if she returned to Malaysia and sought access to her children. I am satisfied she could access State protection.

    62.Next, after considering all the country information in the sources cited herein, and given the claims accepted by the Tribunal, I am not satisfied the applicant has a real chance of suffering serious harm in Malaysia, for any other reason related to her being a divorced woman.

    63.After considering the evidence, the Tribunal is not satisfied the applicant has a real chance of suffering serious harm in her home area of Malaysia, for any reason discussed under the above sub-heading.

    The appellant’s submissions

22. As I have recorded, the appellant’s case is that the Tribunal failed to deal with all bases on which she feared harm.  The appellant submits that, although having raised with the Tribunal the deprivation of contact with her children, this is not the “harm” she fears.  The “harm” she fears is the violence of her former husband if she has to deal with him in relation to the children.  The appellant submits that, although the Tribunal expressly considered what would happen if she were to seek legal access to her children, it did not consider whether she would be subject to violence from her former husband if she sought to obtain access to the children without a court order.  As the appellant puts it, this aspect is not covered by the finding that, in the two year period before she left Malaysia in December 2013, she did not suffer violence from her former husband.  According to the appellant, this is because, on the Tribunal’s own finding, she did not have contact with him in that period.  At that time, she had custody of the two children and did not have to deal with him on that score.  She argues that their positions are now reversed and the history of their relationship is one of harm.  The appellant also submits that her former husband’s past inaction does not necessarily address her fears for the future. 

    Consideration

23. The Minister submits that the appellant did not raise before the Tribunal a clearly articulated claim that she would seek access to her children through non-legal means in a way that would require her to speak to her former husband. 

24. I do not accept that submission.  It seems to me that at [44] and [56] of its Decision Record, the Tribunal understood that contention to be part of the appellant’s claim to fear harm if she returned to Malaysia.  Indeed, at [56] the Tribunal specifically turned its mind to the possibility that the appellant might seek to convince her former husband to voluntarily allow her to see the children.  It is true that the Tribunal did so in the context of considering whether an inability to see the children was relevant “harm”.  But I do not think that it is a fair reading of [56] ‑ [63] of the Decision Record to conclude that the Tribunal put to one side, and did not consider, the possibility of harm to the appellant by her former husband resulting from the need to deal with him to obtain access to the children, whether informally or by court process.

25. For example, at [59] of the Decision Record the Tribunal expressly considered the possibility that the appellant could pursue access to the children.  Although this paragraph proceeds from a discussion in [58] about obtaining custody or access through court process, contrary to the appellant’s submission I do not read it as dealing solely with any attempt by the appellant to obtain access to the children through court process, particularly having regard to the possibility recorded at [56] about the appellant convincing her husband to voluntarily allow her to see the children.  Also, [58] of the Decision Record acknowledges the possibility of personal contact between the appellant and her former husband for the purposes of any legal proceedings for access she might bring. On the question of seeking access, the Tribunal stated that it was not satisfied that there would be any intent by the former husband to harm the appellant personally. 

26. Further, at [60] of its Decision Record the Tribunal dealt specifically with domestic violence in Malaysia.  This paragraph cannot be read, sensibly, in isolation from the preceding and following paragraphs dealing with the possibility of the appellant seeking custody of, or access to, the children.  In that context, the Tribunal found:

    … However, given the Tribunal is satisfied the ex-husband did not harm, harass or even question the applicant in the two years immediately prior to her departure, I am not satisfied that she would suffer serious harm in Malaysia, for any reason discussed herein.

    (Emphasis added)

1. Fairly read, this passage is a finding by the Tribunal that it was not satisfied that the appellant would suffer harm at the hands of her former husband should she seek, amongst other things, to obtain access to the children, whether formally (through court intervention) or informally (without court intervention).

2. I do not accept, therefore, that the Tribunal failed to deal with all bases on which the appellant feared harm.  I accept the Minister’s submission that the Tribunal comprehensively addressed the issue of harm arising from violence by the appellant’s former husband, including in the context of the appellant’s possible pursuit of access to the children.  For this reason, the proposed new ground of appeal cannot succeed. 

   DISPOSITION

3. Given the conclusion I have expressed above, leave to raise and rely on the new ground of appeal will be refused.  No other ground is pursued.  It follows that the appellant’s appeal cannot succeed and must be dismissed.  The appellant must pay the Minister’s costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:       

Dated:       27 May 2019