DVX20 v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2023] FedCFamC2G 188

Federal Circuit and Family Court of Australia

(DIVISION 2)

DVX20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 188

File number(s): ADG 288 of 2020
Judgment of: JUDGE BROWN
Date of judgment: 10 March 2023
Catchwords:  MIGRATION – Application for judicial review – decision of the Administrative Appeals Tribunal – application for protection visa – citizen of Malaysia – claim for protection on basis of persecution because of political views and sexual orientation – in written  visa application applicant claimed her support of LGBTI citizens puts her at risk – at hearing the applicant asserted her sexuality puts her at risk – did the AAT commit jurisdictional error by failing to inform or properly inform the applicant that it regarded her claims as lacking credibility due to inconsistencies arising between her written claims and claims made at hearing – provision of information – was finding regarding credibility legally unreasonable – did AAT take into account irrelevant considerations – real chance test –complementary protection provisions – whether applicant was afforded procedural fairness – no jurisdictional error established – application dismissed with costs
Legislation:

 Migration Act 1958 (Cth) at ss 5J, 36, 65, 424A, 424AA, 425, 474, 476

Migration Regulations 1994 at Sch 2

Cases cited:

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473

Chan v Minister for Immigration (1989) 169 CLR 379

Craig v South Australia (1995) 184 CLR 163

DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2

DQU16 v Minister for Home Affairs (2020) 95 ALJR 352

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594

Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration v Guo (1997) 191 CLR 559

Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190

SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415

VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
Division: Division 2 General Federal Law
Number of paragraphs: 130
Date of hearing: 29 November 2022
Place: Adelaide
Counsel for the Applicant: Dr Churches
Solicitor for the Applicant: MSM Legal
Counsel for the Respondents: Mr Sharpe
Solicitor for the Respondents: HWL Ebsworth
Solicitor for the Respondents: Submitting notice filed save as to costs

ORDERS

ADG 288 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

DVX20

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE BROWN

DATE OF ORDER:

10 March 2023

THE COURT ORDERS THAT:

1.The application filed 21 August 2020 is…

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AGLC
DVX20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 188
Case
[2023] FedCFamC2G 188
Decision Date

CaseChat Overview and Summary

The case of DVX20 v Minister for Immigration, Citizenship and Multicultural Affairs involved the applicant, DVX20, who sought protection from the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant contested the Minister's decision to refuse their application for a protection visa, arguing that the Administrative Appeals Tribunal (AAT) erred in its assessment of the applicant's status under the complementary protection criteria and failed to consider certain relevant factors. The primary issues before the court were whether the AAT correctly applied the legislative criteria for granting a protection visa and whether it overlooked critical aspects of the applicant's case, particularly concerning the risk of persecution based on the applicant's sexuality.

The court examined the AAT's determination and found that it had properly considered the complementary protection obligations as required by law. The court accepted that the AAT's analysis of the relevant factors was thorough and that it had made findings based on the evidence presented. Consequently, the court rejected the argument that the AAT failed to consider the real chance of persecution due to the applicant's sexuality and dismissed the ground of appeal. The court also found that the AAT had not taken into account irrelevant considerations in its assessment of the applicant's status under the complementary protection criteria.

Given the court's findings, the application for judicial review was dismissed. The court ruled that the applicant must bear the costs of the proceedings, amounting to $7,853.00, as per the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021. This decision underscores the importance of correctly applying legislative criteria in assessing applications for protection visas and highlights the need for tribunals to carefully consider all relevant factors in their determinations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In these circumstances, it is the submission of Mr Sharpe that the Tribunal did consider the complementary protection obligations in the case at [49] to [55] of its determination and given its factual findings could do nothing more. As such it separately considered the complementary protection as it was required to do. I accept this submission. Accordingly, ground five also must be rejected.Conclusions For these reasons, the application must be dismissed. The first respondent seeks that the applicant pay the first respondent’s costs of the proceedings. The amount allowable pursuant to the relevant court scale set by the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021 is $7,853.00. I will make an award of costs in this amount.

Ratio Decidendi

Legal Principle Established

In addition, Dr Churches submits that the AAT fell into legal error in its application of the legislative criteria relevant to its assessment of the applicant as a refugee to whom Australia owed protective obligations. In particular, he submits that the Tribunal failed to consider whether there was a real chance that the applicant would be subject to persecution, if returned to Malaysia, because of her sexuality and in addition took into account irrelevant considerations in respect to its task of assessing the applicant’s status, under the complementary protection criteria. LEGAL CONSIDERATIONS RELEVANT TO THE GRANT OF PROTECTION VISAS The AAT summarised the legislative criteria for the grant of a protection visa, pursuant to the Act. In general terms, the following matters are relevant to any decision in respect of a migration decision concerning an application for protection. Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned. In respect of an application for a protection visa, the criteria required to be satisfied are set out in the Act in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy one of the primary criteria contained in either section 36(2)(a) or (aa) of the Act. Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and is therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:[I]n the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and ·be subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and ·the persecution in question would involve the applicant suffering serious harm. The expression serious harm is defined in section 5J(5) as follows:·a threat to the person's life or liberty;·significant physical harassment of the person;·significant physical ill-treatment of the person;·significant economic hardship that threatens the person's capacity to subsist;·denial of access to basic services, where the denial threatens the person's capacity to subsist;·denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. These sections reflect the definition appearing in the Refugees Convention,[11] to which Australia is a signatory and which provides that a refugee is a person who:…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.[11] Hereinafter referred to as “the Convention”.