Dub18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 362
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DUB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 362
File number(s): MLG 2134 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 24 April 2024 Catchwords: MIGRATION – application for judicial review –where Administrative Appeals Tribunal affirmed decision of first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) – ground raised orally at hearing – whether Tribunal failed to consider an essential integer of the applicant’s claim – where further ground made post-hearing – conduct of solicitor – found no jurisdictional error on the Tribunal’s behalf. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 474, 476.
Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) rr 1.04, 9.03.
Cases cited: AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433
BGV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 22
BNQ16 v Minister for Immigration and Border Protection [2020] FCA 1831
Craig v South Australia (1995) 184 CLR 163
ELA18 v Minister for Home Affairs [2019] FCA 1482
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Plaintiff M1/2022 v Minister for Home Affairs (2022) 96 ALJR 497
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2002) 77 ALJR 1165
SZSRR v Minister for Immigration & Anor [2016] FCCA 2463
SZULW v Minister for Immigration and Border Protection [2018] FCA 1335
WQRJ v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 122 Date of last submission/s: 26 February 2024 Date of hearing: 5 February 2024 Place: Melbourne Solicitor for the Applicant: Ms Holbeche of Asylum Seeker Resource Centre Counsel for the First Respondent Mr Barrington Solicitor for the First Respondent Australian Government Solicitor The Second Respondent Submitting appearance, save as to costs ORDERS
MLG 2134 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUB18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The Amended Application filed 6 February 2024 be dismissed.
2.The Applicant pay the First Respondent’s costs in an amount to be fixed, if not agreed.
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 J YOUNG:
INTRODUCTION
Before the Court is an Amended Application filed on 6 February 2024, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 12 July 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa.
At the hearing of this matter on 5 February 2024 the applicant was represented by Ms Holbeche, Solicitor, Human Rights Law Program (HRLP) of the Asylum Seeker Resource Centre (ASRC).
Mr Barrington of Counsel appeared for the Minister.
CONTEXT
The applicant is a citizen of Malaysia.
On 28 October 2012 the applicant entered into Australia on a visitor visa.
On 21 September 2015 the applicant applied for a Protection (subclass 866) visa (Visa). The applicant’s claims were set out in her Visa application. Relevantly, the applicant claimed that:
(1)she was threatened and harmed by money lenders to whom her husband owed money. She left Malaysia to escape;
(2)she was assaulted by her husband. She was threatened and assaulted by money lenders and her shoulder was injured;
(3)the people who threatened her told her not to leave the house and told her not to go to the police, and that if she did, they would abduct the children from school and threatened to kill her;
(4)she was afraid that the threatening people could find her wherever she moved to and her children had to go to school. She needed work which meant that she needed to leave the house. She moved to her mother’s house and took the children there before coming to Australia; and
(5)if she returned to Malaysia, she and her children would be harmed by the people who are threatening her. The authorities in Malaysia cannot protect her in regards to relocation and she said that she was living in Kuala Lumpur but received a threatening letter to her mother’s address in Negeri Sembilan Malaysia. The letter said that those threatening her could find her and kill her wherever she went.
On 3 March 2016 the Delegate refused to grant the applicant the Visa.
On 10 March 2016, the applicant applied to the Tribunal for review of the Delegate’s decision and appointed a representative.
On 11 March 2016, the Tribunal sent the applicant’s representative confirmation of receipt of her application. The applicant was advised if she wished to provide material or written arguments for the Tribunal to consider, she should do so as soon as possible.
On 8 August 2017, the Tribunal emailed the applicant’s representative inviting the applicant to attend an in-person hearing on 12 October 2017 at 10.30am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 1 September 2017 the applicant’s representative wrote to the Tribunal requesting that the hearing be postponed by reason of the representative already having a matter listed before the courts on the hearing date. On 12 September 2017 the Tribunal emailed the applicant’s representative advising that the applicant’s adjournment request had been approved. The Tribunal’s email also invited the applicant to attend a rescheduled hearing on 27 October 2017 at 10.30am.
On 25 September 2017 and 11 October 2017 the applicant’s representative wrote to the Tribunal requesting that the applicant’s matter be reallocated to a female Tribunal member, noting that the applicant had expressed that she would be uncomfortable giving evidence about her experiences of domestic violence to a male member. On both occasions, the Tribunal denied the applicant’s request for the matter to be reallocated to a female member. The Tribunal’s reason for denying the request was that the Tribunal is able to hear gender-related claims including matters of family violence with a male member and discharge its obligations of fairness and found that, on the information before it, the Tribunal did not have cause to depart from this approach.
On 20 October 2017 the applicant’s representative emailed the Tribunal and provided a copy of the following documents:
(1)a Statutory Declaration of the applicant dated 20 October 2017;
(2)an online newspaper article titled, ‘Brother and two sisters in dilemma’ and dated 16 April 2017; and
(3)a Malaysian Police Report dated 17 April 2017 and an accompanying translation.
On 25 October 2017 the applicant’s representative emailed the Tribunal and provided a written submission (Pre-Hearing Submissions).
On 27 October 2017 the applicant appeared before the Tribunal and gave evidence with the assistance of her representative and an interpreter in the Tamil and English languages.
On 10 November 2017 the applicant’s representative emailed the Tribunal and provided the following documents:
(1)a post hearing submission dated 10 November 2017 (Post-Hearing Submissions); and
(2)a supplementary Statutory Declaration of the applicant dated 10 November 2017.
On 16 February 2018 the applicant’s representative emailed the Tribunal and provided the following documents:
(1)a further supplementary Statutory Declaration of the applicant dated 16 February 2018; and
(2)a Statutory Declaration of the applicant’s daughter dated 2 February 2018 (Daughter’s Statutory Declaration).
On 12 July 2018 the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa. On 13 July 2018, the Tribunal sent a copy of its decision and reasons to the applicant’s representative by email.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 12 July 2018 (Tribunal Decision).
At paragraphs [13], [19], [39] and [64] of the Tribunal Decision, the Tribunal summarised the applicant’s claims.
At paragraphs [18] – [38] the Tribunal considered the applicant’s claims to fear harm from her husband, and at paragraph [20] the Tribunal found the applicant’s claims “implausible” and “speculative”. The Tribunal made a number of findings in support of its ultimate finding that the applicant’s claims were not credible, including that:
(1)the newspaper article provided by the applicant did not support her claims that her husband was controlling, nor did the Tribunal accept that the account reported in the newspaper was a fabrication. Rather, the Tribunal considered that the article cast doubt on the applicant’s account of events and considered it to be significant that the applicant’s husband may be residing outside of Malaysia;
(2)the applicant’s explanation as to why she did not make a complaint to the police, being that the police did not help those families being “tortured and killed by loan sharks”, was “inchoate” and “desultory”, with the Tribunal noting country information suggests that the police are capable of investigating sexual and domestic violence and might be able to protect the applicant if she went back to Malaysia;
(3)the applicant’s lack of evidentiary material, including to support the applicant’s claims that her husband is using proxies to find her and her children;
(4)the applicant’s contradictory evidence as to her reason for leaving Malaysia, initially stating it was because of loan sharks and later stating it was for both reasons of domestic violence and loan shark problems; and
(5)the applicant’s evidence lacked detail about her husband’s motivations and migration status and were “largely speculative” about what harm he could orchestrate; and
(6)given the extent of the adverse credibility findings, the Tribunal did not accept that the applicant’s husband was violent to her in their marriage or after separation, that he has threatened her after their separation, that he has harmed or committed violence against her or her children, or that he has monitored her or kept track of her for the purposes of harming her.
At paragraphs [39] – [56] of the Tribunal Decision, the Tribunal considered the applicant’s claims to fear harm from loan sharks. At paragraph [40] the Tribunal noted that the applicant’s oral evidence had a “different complexion” to her written submissions. The Tribunal was concerned about the applicant’s motivations given the inconsistencies to the timing of the applicant’s departure for Australia, noting that her evidence was that she did not decide to leave Malaysia until October 2012 despite having obtained her visitor visa to come to Australia in May 2012. The applicant subsequently clarified that she had obtained the visitor visa but was unable to travel due to an injury and her reliance on a travel agent. At paragraph [49], the Tribunal found that the applicant’s delay in departing Malaysia was not consistent with her narrative of someone in danger needing to leave.
At paragraph [50] of the Tribunal Decision, the Tribunal did not find the applicant’s claims regarding the loans “convincing”. At paragraph [51] the Tribunal accepted that the applicant’s husband may have had loans, but did not accept that the applicant would have had “any difficulty returning and paying the loans or was liable for them or a target for having them repaid”. At paragraph [53] the Tribunal did not accept that the applicant had been harassed by loan sharks, or that threats had been made to the applicant’s family.
Based on the above findings, at paragraph [58] the Tribunal concluded that there was no real chance that the applicant would be harmed by her husband, money lenders or “anyone else for any reason whatsoever” on her return to Malaysia. Further, the Tribunal found at paragraph [62] that there were no substantial grounds to believe that the applicant would suffer significant harm if returned to Malaysia.
At paragraphs [64] – [65] of the Tribunal Decision, the Tribunal considered the applicant’s Post-Hearing Submissions and was not persuaded for a number of reasons, including that:
(1)the applicant’s added descriptions of status groups to her identity presented as an “afterthought”;
(2)the applicant had lived for months in Malaysia without her husband and was assisted by her family;
(3)the applicant may have had trauma, but she presented as a clear person in the hearing and was able to present information lucidly, with the opportunity for breaks and discussion with her representative; and
(4)the Daughter’s Statutory Declaration may corroborate the accounts of a problematic family situation, but that it did not extend to persecution or a risk of harm.
Accordingly, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm or a real risk that she would suffer significant harm on return to Malaysia and found that she did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
APPLICATION FOR JUDICIAL REVIEW AND PROCEDURAL HISTORY
The applicant applied for judicial review of the Tribunal Decision on 23 July 2018. The Application filed by the applicant on 23 July 2018 contained the following grounds (without amendment):
1. The decision of the Tribunal:
(a)is affected by an error of law; and
(b)denied the applicant procedural fairness.
2.The applicant is seeking legal assistance and will provide particulars in due course.
Accordingly, the Application contained no substantive grounds.
On 3 July 2023 Ms Holbeche filed a Notice Address for Service and commenced acting for the applicant in this matter.
On 24 November 2023 orders were made for, amongst other things, the applicant to file and serve any further Amended Application with proper particulars of the grounds of the application, an outline of written submissions and any additional evidence on which the applicant sought to rely by 4.00pm, 8 January 2024 and listing the matter for hearing on 5 February 2024 (November Orders).
On 30 November 2023 and 20 December 2023 Ms Holbeche emailed chambers requesting an adjournment of the hearing due to unavailability of pro-bono Counsel to appear at the hearing. Both adjournment requests were unable to be accommodated and as such Ms Holbeche was advised that the matter remained listed for 5 February 2024.
No material was filed by Ms Holbeche on behalf of the applicant on 8 January 2024 in accordance with the November Orders, nor at any time prior to the hearing. Further, at no time did Ms Holbeche communicate with the Court or my chambers in relation to the failure to comply with the November Orders.
On 22 January 2024 the Minister filed material in accordance with the November Orders.
On Friday 2 February 2024, Ms Holbeche wrote to chambers saying:
Dear Associate,
Thank you for your email.
I am only appearing for the Applicant on Monday for the purposes of requesting an adjournment.
If the adjournment is not granted, the Applicant will be appearing unrepresented on her own as we are not able to represent the Applicant without counsel.
If the Applicant appears unrepresented she will require a Tamil interpreter. This was foreshadowed in her originating application filed in July 2018.
I sincerely apologise for the inconvenience this poses to the Court. I have done everything within my power to avoid this situation.
…
The Hearing
As already set out, the hearing took place on 5 February 2024.
At the hearing Ms Holbeche submitted that the Tribunal failed to consider an essential integer of the applicant’s claim, being, in summary, the applicant’s claim to fear harm on the basis of her ethnicity as well as her membership of particular social groups. Given the articulation of this ground for the first time at hearing, orders were made for the applicant to file and serve an Amended Application and an outline of written submissions by 4.30pm that day and for the Minister to file and serve submissions in response by 4.30 pm on 12 February 2024 (Hearing Orders).
Adjournment request
As foreshadowed in her email of 2 February 2024, at the hearing, Ms Holbeche sought a further adjournment to secure Counsel and informed the Court that she was not prepared to appear on behalf of the applicant.
At the hearing I declined to grant the adjournment. My reasons for that decision are as follows.
Firstly, the current proceedings were commenced on 23 July 2018 and have therefore been on foot for in excess of five and one half years.
Secondly, Ms Holbeche has been on the record as the lawyer acting for the applicant since 3 July 2023 and on the basis of Ms Holbeche’s own evidence HRLP assessed that it would assist the applicant in this proceeding on 14 August 2020. Accordingly, both HRLP and Ms Holbeche have had an extended period of time in which to prepare the applicant’s case.
Thirdly, Ms Holbeche is a solicitor employed by the ASRC. Ms Holbeche’s evidence is that ASRC is a not for profit organisation that provides support to persons seeking asylum. Her further evidence is that HRLP provides free legal assistance to persons seeking asylum. Ms Holbeche therefore has specialist legal knowledge in relation to asylum seeker matters and, on this basis, is adequately able to represent the applicant, and, indeed, did so at the hearing.
Fourthly, Ms Holbeche has been on notice for some 10 weeks that the matter was listed on 5 February 2024. Further, Ms Holbeche was aware that her request for an adjournment to accommodate Counsel’s availability had been declined twice as it could not be easily facilitated due to listing availability and case load.
Fifthly, Ms Holbeche’s evidence is that Mr Rajanyagam of Counsel accepted a brief to advise as to the merits of the applicant’s judicial review Application on 3 August 2022 and that Mr Rajanyagam provided his opinion to HRLP on 2 May 2023. Accordingly, Ms Holbeche had been in possession of Counsel’s advice as to any grounds of judicial review which might be advanced on the applicant’s behalf for some 9 months prior to the hearing. In those circumstances, I am unable to see why Ms Holbeche was not prepared to address the Court as to the applicant’s grounds for judicial review. Indeed she ultimately did so, making oral submissions and citing relevant case law.
Whilst I accept that the applicant’s preference was for Counsel to appear, in circumstances where the applicant is represented by a legal practitioner, that practitioner has had carriage of the matter for a considerable period of time and is familiar with the applicant’s case, attends the hearing and has had Counsel’s advice as to the merits of the Application for many months, I do not consider that an adjournment is necessary, appropriate, nor consistent with the overarching purpose contained in the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) (Rules) “to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”: r 1.04 of the Rules.
Leave to withdraw
As also foreshadowed, upon the adjournment being denied, Ms Holbeche sought leave to withdraw as the applicant’s lawyer. Rule 9.03 of the Rules provides as follows:
(1)A lawyer for a party may withdraw from the record in a proceeding by filing a notice of withdrawal, in accordance with the approved form, and serving the notice on each other party.
(2)However, a lawyer may not file or serve a notice of withdrawal without leave of the Court unless the lawyer has, not less than 7 days before filing the notice, served a notice of intention to withdraw on the party for whom the lawyer is acting.
(3)A notice of intention to withdraw must be in accordance with the approved form.
(4)A lawyer may serve a notice of intention to withdraw on a party by:
(a)posting it to the residential or business address of the party last known to the lawyer; or
(b)emailing it to the email address of the party last known to the lawyer.
(5)If a party’s lawyer withdraws from the record, the party’s last known residential or business address is the address for service until:
(a) the party appoints another lawyer; or
(b) the party files a notice of address for service.
Ms Holbeche conceded that she had not complied with r 9.03 of the Rules. I declined to grant leave for Ms Holbeche to withdraw. My reason for that decision are as follows.
Firstly, if leave was granted for Ms Holbeche to withdraw, the applicant would be unrepresented. As noted above at paragraphs [27] and [28], the Application filed on 23 July 2018 contained no substantive grounds and foreshadowed that further grounds would be provided. Despite orders for the applicant to do so, and Ms Holbeche representing the applicant at all relevant times, no Amended Application nor any written submissions had been filed on the applicant’s behalf as ordered by the Court. Requiring an unrepresented litigant to address the Court in those circumstances (assuming that is possible) would place them at a significant disadvantage and render them unable to adequately advance their case.
Secondly, the applicant’s first language is Tamil and, if she became unrepresented, she would require the assistance of an interpreter in order to address the Court and adequately represent herself. Ms Holbeche was on the record as representing the applicant and had twice been informed that the matter could not be adjourned and would proceed as listed on 5 February 2024. Accordingly, the Court had not engaged the services of an interpreter as one was not required for the hearing. Given these matters, allowing Ms Holbeche to withdraw would have precluded the hearing from proceeding due to the absence of an interpreter. It appears that Ms Holbeche’s application for leave to withdraw was designed to force the Court to adjourn the matter and thereby achieve the outcome sought by her, in circumstances where an adjournment had thrice been declined.
In all the circumstances, including the length of time the Application had been on foot, the overarching purpose contained in the Rules, the ability of Ms Holbeche to adequately represent the applicant, and the inability of the applicant to adequately represent herself in the circumstances, I am not persuaded that leave ought be granted.
Conduct of Ms Holbeche
I consider the conduct of Ms Holbeche in this matter to be unacceptable and express my significant dissatisfaction with it.
Firstly, Ms Holbeche has repeatedly failed to comply with Court orders. As set out above, the November Orders required the applicant to file and serve any further Amended Application with proper particulars of the grounds of the Application, an outline of written submissions and any additional evidence on which the applicant sought to rely by 4.00pm, 8 January 2024. Ms Holbeche, on behalf of the applicant, failed to file any material as ordered. It appears that this was on the basis that the hearing ought be adjourned to accommodate Counsel’s availability. This was despite Ms Holbeche being twice advised that an adjournment of the hearing on 5 February 2024 on this basis was declined, Ms Holbeche being in possession of Counsel’s advice as to the merits of any Application for judicial review by the applicant for many months and being aware that the Application filed in 2018 was a “holding application” and did not contain any substantive grounds of review. Further, at no time did Ms Holbeche communicate with the Court or my chambers in relation to the failure to comply with the November Orders.
Further, despite at the hearing confirming her ability to do so, Ms Holbeche did not comply with the Hearing Orders. The Amended Application was not filed in accordance with those orders (having been lodged after the 4.30pm time required) and no written submissions were filed. Ms Holbeche’s conduct demonstrates wilful disregard for the orders of this Court, its resources and time. Such conduct is unacceptable, and most particularly egregious when engaged in by a solicitor.
Secondly, whilst Ms Holbeche is, of course, at liberty to make any application she considers appropriate, including an application for leave to withdraw, I consider Ms Holbeche’s conduct in doing so in the present circumstances to be disingenuous, at best. Ms Holbeche attended the hearing on 5 February 2024: having failed to file any material on the applicant’s behalf which articulated any substantive grounds of review and as ordered; in full knowledge that the Court had twice declined an adjournment request based on Counsel’s availability; and having been twice advised that the hearing remained as listed. Following a reiteration of the request for an adjournment at the hearing and a reiteration of its declination, and in circumstances where on her own evidence she had been in possession of Counsel’s advice in relation to the applicant’s grounds for judicial review for some 9 months, Ms Holbeche informed the Court that she was not prepared to represent the applicant and sought leave to withdraw. She did so in full knowledge that if leave were granted, due to, amongst other things, the absence of an interpreter to assist the applicant, the Court would adjourn the hearing. In making the application for leave, I consider Ms Holbeche sought to pressure the Court, in my view in an improper manner, into granting an adjournment which had thrice been declined. Further, despite her submissions to the contrary, it is clear that Ms Holbeche was able to adequately represent the applicant, as she did so, making cogent submissions and directing the Court’s attention to relevant case law.
In my view, Ms Holbeche’s conduct in this matter falls well below the standard expected of an officer of the Court. Further, Ms Holbeche’s conduct post hearing has continued to demonstrate an absence of regard for Court processes and Rules.
AMENDED APPLICATION
The Amended Application contains the following ground for judicial review (without amendment):
1.The Administrative Appeals Tribunal failed to consider an essential integer of the Applicant’s claim and in doing so, did not discharge its statutory function of review.
a.In pre-hearing submissions filed with the Tribunal, the Applicant claimed to fear harm on the basis of her ethnicity as an Indian Tamil as well as her membership of particular social groups: CB 181; 194.
b.Further references were made to the Applicant’s ethnicity throughout those submissions, including as to discrimination faced by Tamils in Malaysia generally and the difficulties faced by Tamil women in Malaysia in obtaining police protection in relation to domestic violence: CB 186-187; 192.
c.The Applicant’s first statutory declaration also referred to the status of Tamils in Malaysia: CB 168.
d.The Applicant’s claim to fear harm on the basis of ethnicity was again reiterated in post-hearing submissions: CB 213.
e.The Tribunal did not deal with this aspect of the Applicant’s claim at all in its reasons.
f.The error is material: had the Tribunal not committed this error, there was a realistic possibility of a different outcome: Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 at [1] (Ground 1).
As already set out, no written submissions were filed on behalf of the applicant in support of the Amended Application.
EVENTS POST HEARING
In accordance with the Hearing Orders, the Minister filed submissions in response to Ground 1 on 12 February 2024 (Response Submissions).
On 13 February 2024 Ms Holbeche wrote to Chambers saying:
Dear Associate,
I write this email with the consent of the Respondent's solicitors (copied in).
I refer to the submissions filed by the Minister yesterday afternoon. I am requesting 7 days for the Applicant to provide submissions.
It is our experience that Applicants in migration matters are afforded an opportunity to reply.
Please see the attached orders which have been sighted and approved by the Respondent.
The First Respondent has advised that it does not oppose the Applicant's request for a further opportunity to file written submissions. However, if such an order is made, the first Respondent seeks an opportunity to file written submissions in response, within a further 7 days (see proposed order 2).
Accordingly, the following orders were made by consent:
1.The Applicant file and serve an Outline of Written Submissions by 19 February 2024.
2.The First Respondent file and serve an Outline of Written Submissions in Reply by 26 February 2024.
(Consent Orders).
On 19 February 2024 the applicant filed further submissions. Those submissions contained:
·submissions in reply to the Minister’s Response Submissions filed on 12 February 2024 in relation to Ground 1; and
·sought leave to add a second ground of review.
Pursuant to the submission with respect to the second ground of review, a Further Amended Application was filed alongside the further submissions. As is apparent from the above and Ms Holbeche’s correspondence of 13 February 2024, no application for leave to file a Further Amended Application was filed and no orders were sought nor made in respect of a Further Amended Application. Neither the Court nor the Minister were given any prior notice of the Further Amended Application.
On 26 February 2024, in accordance with the Consent Orders the Minister filed further supplementary submissions. The Minister opposes leave to further amend the Application.
The proposed second ground of review is as follows (without amendment):
2.The Administrative Appeals Tribunal failed to consider an essential integer of the Applicant’s claim and in doing so, did not discharge its statutory function of review.
a.In pre-hearing submissions filed with the Tribunal, the Applicant asserted a real chance of harm based on her status as a single woman without male protectors: CB194.
b.That claim was supported by country information contained in the pre-hearing submissions: CB192-193.
c.The claim was re-affirmed by the Applicant in her post-hearing submissions: CB210.
d.The Tribunal failed to give the requisite consideration to this integer of her claim: cf. CB 257- 258 [65].
e.The error is material: had the Tribunal not committed this error, there was a realistic possibility of a different outcome: Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 at [1].
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) 211 CLR 476 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 at [175].
CONSIDERATION
Ground 1
By Ground 1 the applicant claims that the Tribunal failed to consider her claim to fear harm on the basis of her Tamil ethnicity at all and therefore did not discharge its statutory function.
Submissions as to Ground 1
The applicant submits that she clearly and consistently articulated such a claim before the Tribunal. The applicant submits that this claim was articulated in the Pre-Hearing Submissions at Section 1.1 when she summarised her claims and again at the conclusion of the submissions at Section 4. The applicant submits that it is clear from the use of the phrase “as well as” in Section 1.1 of the Pre-Hearing Submissions that she was identifying two alternative claims of well-founded fear of persecution: one based on her ethnicity and the other based on her membership of particular social groups. Further, the applicant submits that this claim was again identified in the Post-Hearing Submissions and that these submissions were quoted by the Tribunal in its reasons, indicating that the Tribunal identified that the applicant’s ethnicity was a basis for her claimed fear of persecution. The applicant submits that the Tribunal did not consider this integer of her claim at all, much less engage in an “active intellectual process” with respect to it.
The Minister accepts that in the Pre-Hearing Submissions the applicant made a “high level claim” to fear harm on the basis of her ethnicity as an Indian Tamil. The Minister also does not dispute that if the Tribunal erred, as submitted by the applicant, that error would be material. However, the Minister contends that when read fairly, and in context, the applicant did not make a clearly articulated claim to fear harm on the basis of her ethnicity.
Consideration
Section 1 of the Pre-Hearing Submissions provide as follows:
1. SUBMISSIONS
1.1 Summary of claims
The applicant fears that should she be forced to return to Malaysia that she will be killed or seriously harmed, at the hand of her husband and other Malaysian male national's on the basis of:
• Her status as a single mother in Malaysia;
• Her being a woman in Malaysia subject to domestic violence; and
• Her being a woman without a male protector in Malaysia.
1.1.1 Convention grounds
The applicant has a well-founded fear of persecution on the basis of her ethnicity as an Indian Tamil, as well as her membership of a particular social group, namely as:
• A woman in Malaysia;
• A single mother in Malaysia;
• A woman in Malaysia subject to domestic violence; and
• A woman without a male protector in Malaysia.
1.1.2 Well-founded fear
The applicant has a well-founded fear of persecution on the basis of her ethnicity and membership of a particular social group (outlined above) and the Malaysian Government's inability to protect victims of family violence. According to the principles in Khawar and the Department's own Gender Guidelines:
"In cases where there is a risk of being persecuted at the hands of a non-State actor (for example, husband, partner or other non-State actor) for reasons which are related to one of the Convention grounds, the causal link is established, whether or not the absence of State protection is Convention related. Alternatively, where the risk of being persecuted at the hands of a non-State actor is unrelated to a Convention ground, but the inability or unwillingness of the State to offer protection is for reasons of a Convention ground, the causal link is also established. "
The essential and significant reasons the applicant fears persecution are Convention based. She fears harm as a result of her membership of the particular social groups outlined above. These reasons are not of generalised violence but are Convention-related persecution on account of her as an individual and her membership of these groups.
(emphasis in original)
Section 4 of the Pre-Hearing Submissions (noting that there is no section 2 or 3), under the heading “Conclusion”, relevantly, provides as follows:
It is submitted that the applicant has a well-founded fear of persecution based on her ethnicity, and membership of a particular social group if she is returned to Malaysia. Further, we submit that the Applicant is a person to whom Australia has protection obligations under s5H of the Act, and therefore she meets the requirements of s36(2) as at the time of application and the complementary protection criteria in section 36(2)(aa).
Section 2 of the Post-Hearing Submissions provides as follows:
2. CONCLUSION
2.1 Summary of claims
The applicant fears that should she be forced to return to Malaysia that she will be killed or seriously harmed, at the hands of her husband and other Malaysian male nationals on the basis of:
• Her status as a single mother in Malaysia;
• Being a woman in Malaysia who has been subject to domestic violence; and
• Being a single woman without male protection in Malaysia.
2.1.1 Convention grounds
The applicant has a well-founded fear of persecution on the basis of her ethnicity as an Indian Tamil, as well as her membership of a particular social group, namely as:
• A woman in Malaysia;
• A single mother in Malaysia;
• A woman in Malaysia has been subject to domestic violence; and
• A woman without male protection in Malaysia.
In light of the above, I accept that the applicant made a high level claim based on her ethnicity by way of summary and conclusion in the Pre-Hearing Submissions. However, I accept, as submitted by the Minister, that when read fairly, and in context, the applicant did not make a substantial, clearly articulated claim to fear harm based on her ethnicity alone.
Firstly, the applicant was represented by the ASRC at all times. Accordingly, it may be assumed that claims which a represented applicant wishes to make are those which are expressly articulated by their advisers and that any other arguable claims are not pressed: SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 at [80], see also: ELA18 v Minister for Home Affairs [2019] FCA 1482 at [32]; BNQ16 v Minister for Immigration and Border Protection [2020] FCA 1831 at [27]; BGV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 22 at [45].
Secondly, the detail of the applicant’s claims is set out in Section 1.2 of the Pre-Hearing Submissions (which spans pages 3–10 of the Pre-Hearing Submissions). That section is headed “Country information” and commences as follows:
We wish to make the following submissions in support of the applicant’s case and submit that her fears are well founded on the basis of independent, credible country information.
1.2.1 State protection
We submit that the applicant faces a risk of harm from a non-state actor, her husband, for a Convention reason, which the state is unable to protect her from.
…
There is a plethora of recent country information in relation to violence against women in Malaysia. Existing information suggests that rates of reported violence against women are high which indicates that actual rates of violence are in fact higher.
…
The Pre-Hearing Submissions then refer to and extract material from a range of sources in relation to the under reporting of domestic violence against women, the government’s approach to domestic violence against women and the asserted discord between government policy and its implementation, the under reporting of rape, cultural attitudes to rape and domestic violence and the reported lack of sympathy of a mostly male police force to these matters, the religious influences in Malaysian law and the reluctance of Malaysian authorities to become involved in matters of domestic violence due to a general perception that domestic violence is a family matter, concluding:
Therefore, despite the government's stated commitment to combating domestic violence, religious leaders in positions of influence undermine this, and policing at a local level is not adequate. This is consistent with the applicant's experiences of domestic violence by her husband, and the fact that since her departure her family have received no assistance from the police despite the fact that her husband took the children into his custody without her family's permission and has continued to threaten her and her family in Malaysia.
The Pre-Hearing Submissions then provide as follows:
In support of the applicant’s specific claims regarding the futility of seeking police protection, country information shows that the police force is one of the most corrupt agencies in Malaysia.
…
The Tribunal has previously accepted that Tamil women are unable to obtain police protection, specifically in situations of domestic violence…
(Court’s emphasis).
The Pre-Hearing Submissions then refer to a number of Tribunal decisions where it had been found, in summary, that in circumstances of domestic violence state protection in Malaysia may be insufficient or not forthcoming, such that an individual may still face a real risk of significant harm. Finally, Section 1.2.1 of the Pre-Hearing Submissions concludes with submissions as to why the support offered to victims of domestic violence by non-government organisations does not amount to effective protection.
Section 1.2.2 of the Pre-Hearing Submissions is headed “Relocation” (which spans pages 10–15 of the Pre-Hearing Submissions) and commences as follows:
Statutory framework for relocation is now contained in section 5J of the Migration Act, which states in summary that a person has a well-founded fear of persecution if the real chance of persecution relates to all areas of the receiving country. We submit that in the context of the inability and unwillingness of the state to protect victims of domestic violence in Malaysia, particularly assessed cumulatively with the applicant’s religion and ethnicity, this fear of harm across Malaysia is satisfied. We submit it is not safe, reasonable nor practical for the application [sic] to relocate within Malaysia.
…
Thereafter follow submissions in the alternative in relation to the test for assessing the reasonableness of relocation in the context of s 36(2)(aa) of the Act. At page 12 of the Pre-Hearing Submissions (continuing to page 15) the applicant submits:
… that relocation within Malaysia is not safe nor reasonable, particularly where regard is had to the following factors:
a. Lack of family or friends support
…
b. Unrelenting husband
…
c. Her commitment to her children
…
d. Single women in Malaysia
The applicant would be returning to Malaysia as a single Tamil woman without any support. As a single woman, the applicant would face a real chance of being subjected to serious/significant harm including rape and sexual assault at the hands of men in Malaysia, as violence against women is widespread and the State is unable and unwilling to protect women from men’s violence. The applicant would be less likely to be protected by the State as she is Tamil and a single woman, and should she gain custody of her children again she would also be at risk as a single mother.
(Court’s emphasis)
e. Psychological harm
…
f. Inability to obtain meaningful employment
…
g. Inadequate social services
…
Following those submissions, the Pre-Hearing Submissions at page 15 provide as follows:
Were the applicant forced to return to Malaysia, we submit that should could not relocate as she would continue to case a real chance of being subjected to serious or significant harm at the hands of her husband. We note that the applicant's husband has continued to search for her in the past and that there is no reason to suspect that he would not search for her again were she to return and relocate. This is further aggravated by the fact that the applicant would seek to gain custody of her children and further cause reason for her husband to locate her.
In addition to this we note the country information above which confirms that the applicant will face discrimination in any search for employment.
Furthermore, we submit that, as a single woman in Malaysia without protectors, the applicant would face a real chance of being subjected to violence on account of her gender anywhere in Malaysia. Country information as referred to above, confirmed that the State would refuse to protect the applicant against gender based violence and family violence.
Section 4 follows thereafter under the heading “Conclusion”, the content of which is set out in paragraph [70] above.
I consider the above demonstrates that the applicant did not, as asserted, make a substantial, clearly articulated claim that she feared harm because of her ethnicity. Rather, when read as a whole, fairly and in context, I consider the applicant claimed to fear harm from her husband’s acts of violence and that the Malaysian authorities would not provide her with effective protection because she is Tamil and a single woman. The applicant also relied upon these matters in the context of the reasonableness of relocation. They were not relied upon to establish a claim as she contends.
Thirdly, the applicant’s Statutory Declaration is directed, in summary, to her husband’s alleged violence towards her, threats she alleges were made to her and her family from money lenders, the inability or unwillingness of the police and Malaysian authorities to protect her from either her husband’s violence or the money lenders and her fear that either her husband or the money lenders will kill her if she returns to Malaysia. She does not claim anywhere in the Statutory Declaration she fears harm due to her ethnicity as an Indian Tamil. Indeed, at paragraph [84] she says “Tamils in Malaysia are tolerated, but not welcome”.
Fourthly, the Tribunal did not accept the applicant’s claims of domestic violence. It did not accept “that her husband was violent to her in their marriage, or after separation…that the applicant’s husband has threatened her…that he has harmed or committed violence against her or her children…[or] that he has monitored her or kept track of her for the purposes of harming her.” The Tribunal also rejected the applicant’s claims to fear harm from loan sharks. The applicant does not impugn these findings. I accept the Minister’s submission that these findings are critical to the Tribunal’s consideration of the applicant’s claims in so far as they relate to her ethnicity. At paragraph [64] of its decision the Tribunal referred to the applicant’s claim that she will be killed or seriously harmed at the hands of her husband and other Malaysian male nationals on bases that included her ethnicity as an Indian Tamil and said at paragraph [65]:
I am not persuaded by the post-hearing submissions for the following reasons
…
• The applicant has added descriptions of status groups to her identity after the hearing some of which were seemingly not apparent to her at the time of her application to the Department and the Tribunal. They present as an afterthought. In any event I do not accept the allegations of harm she is said to have faced at the hands of her husband, nor the alleged loan shark matters as earlier outlined. I observe that the applicant has lived apart from her husband for a period of months in Malaysia and was helped by family, including a male. I have no reason to believe that the position would alter. I do not accept therefore a lack of family support and resultant psychological harm or lack of meaningful employment, gender related issues, or accessing social welfare and social services that she claims for those reasons.
(Court’s emphasis)
Accordingly, the Tribunal did not accept the applicant’s claims about her Tamil ethnicity because it did not accept the applicant’s allegations of harm from her husband. In circumstances where the Tribunal did not accept the claim to fear harm in the first place, it did not need to consider the applicant’s claim that she could not access effective state protection on account of her ethnicity. Equally, the Tribunal did not need to consider the reasonableness of relocation, because it did not find that the applicant faced a real risk of harm in Malaysia.
In light of all of the above, I consider that the Tribunal identified the claim made by the applicant in so far as it related to her ethnicity and considered it in a manner consistent with how that claim was raised. There was no failure to consider an integer of the applicant’s claim.
Ground 1 discloses no jurisdictional error on the Tribunal’s behalf.
Leave to Further Amend the Application
As set out above, the applicant seeks leave to amend the Application to include a further ground of review. The applicant submits that leave to amend the Application ought be granted because it involves the same legal principles as in Ground 1, the Minister has an opportunity to respond to the applicant’s submissions and therefore suffers no prejudice, the proposed ground has merit, and there are serious consequences for the applicant if her Application is unsuccessful.
As also set out above, the Minister opposes leave to further amend the Application.
For the following reasons, leave to further amend the Application is refused.
No explanation
Firstly, the applicant provides no explanation at all for the extremely late amendment sought. The lengthy procedural history of this matter and the applicant’s engagement with the Court in relation to this litigation is set out above. I consider that in the particular circumstances of this matter this is reason enough to reject the application. As Gleeson J said in SZSRR v Minister for Immigration & Anor [2016] FCCA 2463 at [48] “A just resolution of proceedings does not require that a party be permitted to raise any arguable case at any point in the proceeding”.
Sufficient opportunity
Secondly, the applicant has had three opportunities to put her case and identify her grounds of review over a period in excess of 5 years. The first opportunity was the filing of the originating Application. That Application failed to identify any meaningful grounds. The second was in response to the November Orders. The applicant failed to file an Amended Application or any submissions in accordance with those orders, notwithstanding having been in possession of Counsel’s opinion since 2 May 2023. The third opportunity was at the hearing on 5 February 2024, at which the applicant, without notice, sought to advanced Ground 1. Leave was given for the applicant to amend the Application to include Ground 1 and file written submissions in support. No submissions were filed. The applicant has therefore failed to seize the multiple opportunities provided to her to articulate her case.
Thirdly, as to the assertion that there are “very serious consequences” for the applicant should leave not be granted, one would expect those same very serious consequences to have informed the applicant’s conduct of this matter and the seizing of one of the multiple opportunities afforded her to articulate her case. As Charlesworth J said in AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 at [26]:
Where (as here) it is argued that the appellant’s status as a failed asylum seeker weighs in favour of the grant of leave to raise a new argument, it is not unreasonable to expect the legal representatives of the appellant to adduce admissible evidence as to why the same critical stakes now urged upon the Court did not appear to inform their earlier decisions as to which arguments ought to be run at first instance and which arguments ought not to be run.
Citations omitted.
Prejudice
Fourthly, I reject the submission that the Minister suffers no prejudice because the Minister has an opportunity to respond to the applicant’s submissions. The Minister has lost the opportunity of an oral hearing, or would need to incur the cost and delay of a further hearing, and has incurred wasted costs. Further, the Minister has been compelled to respond to the applicant’s claims in parts, rather than responding to the applicant’s case as a whole. In my view, this approach is prejudicial. In any event, the absence of prejudice is not, of itself, a sufficient basis to grant leave.
Fifthly, as submitted by the Minister, there is a significant public interest in public law matters being resolved in a timely and efficient manner and “the Minister has a legitimate interest in the timely disposal of applications for visas”: WQRJ v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2021] FCA 736 at [42].
Merit of proposed second ground of review
Sixthly, the proposed second ground of review lacks sufficient merit.
By the proposed second ground the applicant claims that the Tribunal failed to consider her claim to fear harm on the basis of her status as a single woman without male protectors.
The applicant submits that this claim was clearly articulated at all stage of the Tribunal process and relies upon the following:
(1)The Pre-Hearing Submissions which stated as follows:
Furthermore, we submit that as a single woman in Malaysia without protectors, the applicant would face a real chance of being subjected to violence on account of her gender anywhere in Malaysia.
(2)Country information including the following:
that as a single woman, the applicant would also face a real chance of being subjected to serious/significant harm including rape and sexual assault at the hands of men in Malaysia, as violence against women is widespread and the State is unable and unwilling to protect women from men’s violence (First Country Information)
that the applicant’s status as a single woman would maker her search for employment very difficult; and
that there are inadequate social services to support single mothers and single women.
(3)The Post-Hearing Submissions which stated as follows:
Furthermore, we submit that as a single woman in Malaysia without protectors, the applicant would face a real chance of being subjected to violence on account of her gender anywhere in Malaysia. Country information in our previous submissions dated 25 October 2017 confirms that the State would refuse to protect the applicant against gender-based violence and domestic violence.
The applicant submits that the Tribunal incorrectly approached this integer of the applicant’s claim as if it was first raised in the Post-Hearing Submissions, saying at paragraph [65] of its decision, that the status groups referred to presented as an “afterthought”. The applicant submits that this incorrect belief then flowed through to the Tribunal’s inadequate engagement with the claim. The applicant submits that the only consideration given by the Tribunal to the claim was as follows:
I observe that the applicant has live apart from her husband for a period of months in Malaysia and was helped by family, including a male. I have no reason to believe that the position would alter.
The applicant submits that this was insufficient consideration having regard to the Tribunal’s statutory task and the manner in which the claim was presented; firstly because the Tribunal’s conclusion that it had “no reason to believe that the position would alter” was wrong with reference to country information particularly that in the First Country Information and secondly, because the help the applicant had received after separating was to leave Malaysia.
I reject those submissions.
I accept that the applicant’s claims as to being a single woman without male protectors was not first raised in the Post-Hearing Submissions as submitted by the applicant. As set out in paragraphs [78]–[79] above, section 1.2.2 of the Pre-Hearing Submissions is headed “Relocation” commencing on page 12 and continuing to page 15 (the final page of the Pre-Hearing Submissions), and addressed the issue of relocation pursuant to seven factors. The last of those factors is under the sub-heading “g. inadequate social services”. The asserted claim was contained in the final paragraph of those submissions.
Section 1.2.8 of the Post Hearing Submissions is headed “Relocation” and provides as follows:
1.2.8.- Relocation
Were the applicant forced to return to Malaysia, we submit that she could not relocate to any other part of Malaysia. As provided in our previous submissions dated 25 October, the applicant has no support outside of Negeri Sembilan and would not be able to find meaningful employment.
Furthermore, the applicant would continue to face a real chance of being subjected to serious or significant harm at the hands of her husband or moneylenders. We note that the applicant's husband has continued to search for her, going so far as to report to the media in order for him to reach her in Australia and there is no reason to suspect that he would find her if she returned to Malaysia.
Furthermore, we submit that as a single woman in Malaysia without male protectors, the applicant would face a real chance of being subjected to violence on account of her gender everywhere in Malaysia. Country information in our previous submissions dated 25 October 2017 confirms that the State would refuse to protect the applicant against gender-based violence and domestic violence.
Accordingly, although not raised for the first time in the Post-Hearing Submissions, on each occasion this claim was raised it was in the course of submissions as to why relocation within Malaysia was not safe nor reasonable for the applicant. Accordingly, the nature of the claims made were not as submitted by the applicant.
Given the Tribunal did not find a real risk of harm for the applicant anywhere in Malaysia, it was not necessary for the Tribunal to consider the reasonableness of relocation.
Further, the claim that the applicant was a single woman without male protectors was not a “substantial, clearly articulated” claim. It was an assertion, contained in a single sentence unsupported by evidence or specifically identified country information. The manner in which the claim was articulated had a concomitant effect on the extent to which the Tribunal was required to engage with it: Plaintiff M1/2022 v Minister for Home Affairs (2022) 96 ALJR 497 at [24]–[26] (per Keifel CJ, Keane, Gordon and Steward JJ). As set out above, the Tribunal did consider the claim at paragraph [65] of the Tribunal Decision.
As to the submission that the consideration given by the Tribunal was not sufficient for the reasons advanced, this invites impermissible merits review. The Tribunal read, identified and evaluated the applicant’s submission. I consider it was open to the Tribunal to have regard to the absence of violence in the past in assessing the risk of violence in the future. Further, I find nothing irrational in the Tribunal inferring that a male relative who had been willing to assist the applicant to leave Malaysia would be willing to assist her in other ways. Finally, the First Country Information is not country information. It is a submission made by the applicant’s representative.
Accordingly, I consider that the Tribunal identified the claim made by the applicant in so far as it related to her status as a single woman without a male protector and considered it in a manner consistent with how that claim was raised, being the reasons why relocation within Malaysia was neither safe nor reasonable for the applicant. There was no failure to consider an integer of the applicant’s claim.
Other matters
In their written submissions, the Minister raised the following two issues for the Court’s consideration.
Applicant’s daughter’s Statutory Declaration
As stated above at paragraph [17], on 16 February 2018 the applicant provided the Tribunal with the Post-Hearing Submissions which attached a Statutory Declaration of the applicant’s daughter dated 2 February 2018. The Daughter’s Statutory Declaration was made in support of the daughter and her brother’s claims for protection, and canvassed matters which were relevant to their visa application and to their mother’s application.
The Tribunal did not expressly refer to the applicant’s daughter’s claim that the applicant’s husband had on one occasion punched her when it summarised the Daughter’s Statutory Declaration.
The Minister submits that this omission does not lead to jurisdictional error.
The applicant made no submissions as to this matter.
I accept the Minister’s submission that the omission does not lead to jurisdictional error as it is clear that the Tribunal did not accept the daughter’s evidence on topics that overlapped with the applicant’s evidence because of the “earlier problems with the credibility of the applicant and her account” identified by the Tribunal. The Tribunal was entitled to reject the daughter’s account on the basis of the credibility concerns about the applicant: See, Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2002) 77 ALJR 1165 at [12]; see also, Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [30]–[33] (North and Landers JJ). As such, there is no realistic possibility that the Tribunal would have accepted the corroborative recollections of an alleged incident that occurred when the daughter was 8 years old.
Reference to evidence of applicant’s sister
As stated above at paragraph [13], on 20 October 2017 the applicant provided the Tribunal with a Statutory Declaration of the applicant dated 20 October 2017. In that Statutory Declaration, the applicant stated the following:
My sister now knows about the abuse I suffered from my husband and she has had many dealings with my husband in my absence. She would be willing to provide a statement in support of my claim or discuss this with a Tribunal member if necessary. My sister’s name is [full name stated] and her phone number is [xxxx xxxx83].
Although the Tribunal referred to the above reference in the Statutory Declaration it did not call any evidence from the applicant’s sister.
The Minister submits that this was a legally reasonable approach for the Tribunal to take in the circumstances of this case.
The applicant made no submissions as to this matter.
For the following reasons, I consider that the approach taken by the Tribunal was legally reasonable in all the circumstances. Firstly, in the hearing invitation provided to the applicant on 8 August 2017 the Tribunal advised the applicant that if she proposed that a witness give evidence, a written statement from that witness should be provided by 5 October 2017. The applicant did not provide a statement or any particulars of her sister’s evidence by 5 October 2017, or at any later time. Secondly, the response to the hearing invitation form completed by ASRC did not include a request that the Tribunal take oral evidence from any witnesses. Thirdly, there is nothing before the Court to indicate the applicant raised this matter at the time of the hearing. It is also not raised by the applicant in the Post-Hearing Submissions.
In all of those circumstances, I consider the approach taken by the Tribunal to be legally reasonable and does not disclose any jurisdictional error on the Tribunal’s behalf.
DISPOSITION
For the above reasons, the Amended Application discloses no jurisdictional error on the Tribunal’s behalf.
It follows that the Amended Application must be dismissed.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 24 April 2024
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