DPS17 v Minister for Immigration

[2018] FCCA 3455

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPS17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3455

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in failing to consider if applicant was a member of a particular social group – whether it was open to the Tribunal to make findings based on absence of previous harm – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 5K, 5L, 5LA, 5M, 36, 65, 414, 415

Cases cited:

Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

Other Materials:
UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951,United Nations, Treaty Series, vol. 189, p. 137

Applicant: DPS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2546 of 2017

Judgment of: Judge Smith

Hearing date: 29 October 2018

Date of Last Submission: 29 October 2018

Delivered at: Sydney

Delivered on: 29 October 2018

REPRESENTATION

Solicitors for the Applicant Mr M Bellingham, Jack Rigg Solicitors

Solicitors for the Respondents: Ms M Perotti, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2546 of 2017

DPS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 18 July 2017.  The Tribunal affirmed a decision of a delegate of the Minister made on 25 May 2017 refusing to grant the applicant a protection visa. 

2. The relevant factual background is set out at [2]-[5] of the respondent’s submissions, and I adopt those for the purposes of this judgment:

   2The applicant, a citizen of Malaysia, arrived in Australia on 13 December 2013 as the holder of an Electronic Travel Authority (subclass 601) visa, which remained valid until 23 March 2014. The applicant then remained unlawfully in Australia until 12 April 2017, when she was located and detained. On 5 May 2017, the applicant lodged an application for a protection visa. On 24 May 2017, a delegate refused to grant the protection visa on the basis of adverse credibility findings.

   3On 29 May 2017, the applicant applied to the Tribunal for review of the delegate’s decision. On 11 July 2017, the applicant appeared before the Tribunal to give evidence and present arguments. On 18 July 2017, the Tribunal affirmed the decision under review.

   Applicant’s claims

   4In her protection visa application, the applicant made the following claims:

   4.1She was born in Malaysia, was of Malaysian ethnicity and was a Christian. She worked as a sex worker in Australia.

   4.2She left Malaysia because she feared her ex-husband who had been violent and threatened and beat her. She miscarried after she was beaten and feared she would be killed by her ex-husband if she returned to Malaysia.

   4.3She would be excluded from society in Malaysia because she became a sex worker in Australia and came from a Christian family.

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

   4.5 She self-harmed in April 2017, because she had “lost hope in [her] life.”

   4.6 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.”

   5 Before the Tribunal, the applicant advanced a new claim that she was at risk of harm because of her Chinese ethnicity (CB 118 [23]).

   (Emphasis in original, references omitted)

3. Given the confined nature of the issues on the appeal which is now limited to ground 1 in the application, it is necessary only to note in respect of the Tribunal’s finding that while the Tribunal accepted the applicant, as claimed, had been the victim of domestic violence at the hands of her former husband in Malaysia, it concluded that there was no real chance of that recurring.  Essentially, that was because the applicant had lived in Malaysia for two years prior to her departure without suffering any serious harm there at the hands of her ex-husband and also because there had been a considerable period of time since her departure from Australia.  It was the combination of those two periods that led the Tribunal to its conclusion.

4. The ground in the application is that the Tribunal failed to consider and take into account a relevant consideration.  In her written submissions, that ground is explained as being that the Tribunal failed to take into account the applicant’s claim that she was a member of a particular social group, being women in Malaysia, and it was for that reason that she would be at harm in the form of domestic violence. 

5. It was argued that the Tribunal’s failure to deal with the membership of the particular social group as so framed led the Tribunal not to properly consider the real question of whether the applicant had a well-founded fear of persecution in Malaysia or in the reasons identified in sub-s.5J(1)(a) of the Migration Act 1958 (Cth) and formally in Article 1A(2) of the Convention Relating to the Status of Refugees as amended by the Protocol[1].

   [1] UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol.606, p.267.

6. The applicant relied upon a number of cases including the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 which concerned a visa applicant who claimed to have been subject to domestic violence at the hands of her husband and who having sought the protection of the police, was denied that protection because, on the evidence, she was a woman. The High Court found that the Tribunal erred by focusing solely on the harm feared at the hands of the husband rather than in addition considering the reason for which state protection was denied or was to be denied to the applicant.

7. The applicant also argued that the fact that a person such as her can live for a certain period without being harmed by her would-be persecutor in combination with a further long period away from home, and therefore away from the feared harm, does not necessarily mean that there is no real risk that the harm will recur.  I will deal with that second argument first even though it was not formally put in the application.

8. It is no doubt true what the applicant submits, that the mere fact that somebody has not been harmed in the past, whether it be for a two-year period or a 10-year period, does not necessarily mean that he or she will not be harmed in the future; however, the Tribunal did not approach the question of future harm on the basis of any necessary conclusion from the absence of harm.  Rather, it inferred from the absence of harm, together with the long absence from Malaysia, that the risk of harm would be below that required by the definition of refugee in s.5H of the Act.

9. In order to establish jurisdictional error in the Tribunal’s conclusion in that respect, the applicant would have to satisfy the Court that it was not reasonably open to the Tribunal to reason in that way and that its conclusion was critical to its decision.  There is no doubt that the conclusion was critical to the decision; however, I am not satisfied that it was not open to infer from a long absence of harm both in Malaysia and in Australia the fact that there was, or the assessment rather was that there was no real risk that the harm would recur on the applicant’s return to Malaysia.

10. While there is no necessary conclusion that can be drawn from such a matter, there is a logical connection between the length of time during which harm is not suffered and the probability of it recurring.  For that reason, as submitted by the Minister, it was open to the Tribunal to reason in the way it did, and thus, the argument raised at the hearing on behalf of the applicant must be rejected.

11. Returning then to the ground in the application and the way it is formulated in the applicant’s written and oral submissions, it must be appreciated in dealing with applications for judicial review of refusals of protection visas what the task of the Tribunal is. The task is at a high level to “review the decision of the delegate”. That means, in light of ss.414 and 415 of the Act, that what the Tribunal must do is to put itself in the shoes of the delegate and ask the question posed of the delegate on the basis of all of the material before it, bearing in mind that it is able to obtain further information than was before the delegate.

12. That then brings attention to the task of the delegate, and that task is essentially defined by s.65 of the Act which requires the delegate to determine whether he or she is satisfied that the criteria for the grant of a visa are met. In this case, the criteria are relevantly set by sub-ss.36(2)(a) and 36(2)(aa). No focus in argument was placed on the latter, and I will leave that to one side.

13. Section 36(2)(a) draws attention to the question of whether the applicant is a refugee which is now a matter that is defined for the purposes of the Act in s.5H as well as ss.5J, 5K, 5L, 5LA and5M. The critical question raised by s.5H for present purposes is whether the applicant had a well-founded fear of persecution. That is a term defined in s.5J, and that requires under sub-s.5J(1)(a) and (c) that:

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

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

14. Like the definition of a refugee in Article 1A(2) of the Convention, albeit now split up into more than one paragraph, the definition of well-founded fear of persecution contains a number of cumulative requirements: see Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 in respect of Article 1A(2) of the Convention.

15. The two relevant components in s.5J are that there be a real chance that the person would be persecuted and, secondly, that the real chance would be for reasons of one of the articulated matters, namely, race, religion, nationality, membership of a particular social group or political opinion. Thus, if one or other of those components is not satisfied then the definition of well-founded fear of persecution is not satisfied and in turn the definition of refugee is not satisfied. In those circumstances, under s.65(1), the delegate, and on review the Tribunal, would be obliged to refuse to grant the visa.

16. In this case, as correctly argued by the applicant, the Tribunal rested its conclusion in respect of the domestic violence claim on the question of whether there was a real chance of the harm recurring.  However, given the structure of the question to be asked by the Tribunal and in particular its cumulative nature it was not, as suggested by the applicant in her argument, an error for the Tribunal not to go on to consider, or as to consider as a necessary and anterior part of the real chance test whether or not the persecution was for one of the grounds set out in sub-s.5J(1)(a).

17. For those reasons, the applicant’s argument that the Tribunal fell into error by failing to address the reason for which the applicant feared harm must be rejected. 

Conclusion

1. As the only two grounds that the applicant has raised have been rejected and I can discern no further jurisdictional error in the Tribunal’s decision, the application must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  28 November 2018