DVX20 v Minister for Immigration, Citizenship and Multicultural Affairs
[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 dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of SEVEN THOUSAND EIGHT HUNDRED AND FIFTY THREE DOLLARS ($7,853.00).
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 BROWN:
introduction
These reasons for judgment relate to an application for judicial review of a decision of the Administrative Appeals Tribunal,[1] made on 14 August 2020. This decision confirmed an earlier decision of a delegate of the Minister of Home Affairs,[2] made on 10 March 2020, not to grant the applicant a protection visa,[3] pursuant to the provisions of section 65 of the Migration Act 1958 (Cth).[4]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “the Ministerial Delegate”.
[3] Hereinafter referred to as “the visa”.
[4] Hereinafter referred to as “the Act”.
The applicant, whose identity has been anonymised, is female and a citizen of Malaysia, where she was born on 12 December 1990. She arrived in Australia on 11 July 2018, pursuant to a three month electronic travel visa.
On 15 September 2018, the applicant personally hand wrote her application for the relevant visa, answering a number of specific questions on the applicable pro forma document relating to her claim.
In answer to the question regarding why she had left Malaysia, she wrote as follows:
I have an open opinion about the same sex marriage, LGBT relationship. Malaysia seems to be open minded with LGBT in whole, but in reality anyone who actually have any connection with this community is threaten by the religious authority under the name of religion. My thought and my opinion has spark anger within the community of religious authority, accused me for infidelity and ruining the religion image. They try to put a charge on me, and to avoid it, I flew the country.[5]
[5] See Case Book at page 24.
In answer to the question regarding what she thought would happen to her, if she returned to Malaysia, the applicant wrote as follows:
Will be punish according to the religion laws. Possibly cane and jail.[6]
[6] See Case Book at page 24.
In response to other questions, regarding the availability of state-based protection and whether she could move to another area of Malaysia, in order to secure her safety, the applicant indicated as follows:
They accused me for disobeying and disgrace the religion, and the religious authority is given full approval by the country laws over anything that doesn’t follow their guide.
They will reach me and find me anywhere within the country.[7]
[7] See Case Book at page 26.
On the face of her handwritten application, the applicant does not unequivocally claim protection on the basis that she is a lesbian. Rather, she obliquely asserts that the authorities would be inclined to pursue people like her. [8]
[8] See Case Book at page 25.
In addition, her written claim for protection implies that she has been an advocate for the rights of members of the LGBTI community and has come to the adverse notice of the Malaysian authorities in this regard.
On the basis of this material and available country information, the Ministerial Delegate concluded as follows:
Country information indicates that the Malaysian government and society largely oppose LGBT lifestyles. The government’s official position is that discrimination against LGBT people should not occur. Country information also indicates that there are many organisations in Malaysia providing support to the LGBT community. The applicant claims that they have spoken out in support of same sex marriage and LGBT relationships. They claim that because of this the authorities tried to bring charges against them and that they left Malaysia to escape these charges. There is no evidence before me that charges have been laid against the applicant. I accept that on return to Malaysia if the applicant speaks out in support of same sex marriage and LGBT relationships they may experience some discrimination. Having weighed the information before me, I am satisfied this discrimination does not amount to a real chance of persecution for the applicant.[9]
[9] See Case Book at page 50.
In light of this decision, on 10 March 2020, the applicant applied to the AAT for a review of the Ministerial Delegate’s decision. On 21 July 2020, the applicant was invited, by the AAT, to attend before it in order to give evidence and present any arguments relating to her claim for protection. The relevant hearing was scheduled for 12 August 2020.
The invitation to attend the hearing was issued pursuant to the provisions contained in section 425 of the Act. It is a requirement relating to procedural fairness. As previously indicated, one of the central issues arising in the case is whether, the invitation having been offered to the applicant, the Tribunal failed to discharge other of its procedural obligations owed to her regarding the statutory requirement to provide particulars of information available to it which may lead it to affirm the relevant decision subject to review.This involves an analysis of the provisions of section 424AA of the Act and its interaction with section 424A.
The applicant attended at the relevant hearing and provided oral evidence to it. A transcript of the applicant’s evidence to the AAT has been provided to this court.[10]
[10] See Exhibit B – Transcript.
The major issues arising in the current matter turn on what the Tribunal characterised as inconsistencies between what the applicant had indicated in her original written application for protection and what she had deposed in her oral evidence to it. As a consequence, the Tribunal determined that the applicant’s claim for protection lacked credibility.
Counsel for the applicant, Dr Churches, submits that such a credibility finding is legally unreasonable, when the applicant’s circumstances are considered, particularly the cultural divide, which she was called upon to cross, in coming from Malaysia to Australia, to make a claim for protection based on her sexuality. Necessarily, he submits such a claim, given its sensitivity, is likely to be hedged in all manner of equivocation and diffidence, when first advanced.
In these circumstances, Dr Churches submits that the Tribunal has failed to properly discharge its legal obligations in respect of its obligation to conduct the review before it and in particular has failed to provide the applicant with appropriate information about matters, which were weighing upon it, in respect of its ultimate decision to make an adverse credibility finding about her, in the context of what is characterised as inconsistencies between what she said in her written application and what she deposed at hearing.
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”.
The High Court has established that this definition has both subjective and objective elements. As a consequence, the question to be asked by the relevant decision-maker, regarding an application for protection being firstly does the applicant concerned subjectively fear persecution and secondly is that fear objectively well-founded.
In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned if he or she is returned to the country in question. Necessarily such considerations are predictive in nature. They are most usually encapsulated under the rubric of the real chance test.[12]
[12] See S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 498–499 [72]–[73].
Accordingly, in determining whether there is such a real chance of a protection visa applicant suffering serious harm, in his or her country of origin, a decision maker is entitled to refer to information germane to the country of origin of the applicant concerned, regarding the situation likely to confront either the actual applicant concerned or others who bear his or her attributes, if returned to that country.
Essentially, the question to be considered is the likelihood that the claimant in question will face persecution if returned to his/her country of origin. Such an inquiry is likely to involve a survey of information of the situation likely to confront a person, with the attributes of the claimant concerned, in the applicable country. Such objective information is invariably referred to as country information.
Pursuant to section 36(2)(aa) of the Act, a person is entitled to a protection visa, if there are substantial grounds for believing that, if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering significant harm if returned to a particular country.
Subsection 36(2A) of the Act defines significant harm. It includes the relevant applicant for protection suffering all or any of the following circumstances:
·being arbitrarily deprived of his or her life; or
·being subject to the death penalty; or
·being subject to torture; or
·being subjected to cruel or inhumane treatment or punishment; or
·being subject to degrading treatment or punishment.
THE HEARING BEFORE THE AAT
Under the heading Summary of Substantive Claims the AAT reiterated the statements provided by the applicant, in her written application, that she had an open opinion about LGBTI relationships but had spoken out in respect of the issue, which had caused an angry reaction with religious authorities in Malaysia. As a consequence, she had been accused of damaging the image of religion, in Malaysia, which had caused her to flee that country in fear of the prospect of either being caned or jailed for what she had said.
Under the heading Tribunal Hearing, the AAT summarised the applicant’s oral evidence to it in which the applicant had indicated that she identifies as a lesbian woman and, as such, would not be accepted in Malaysia. The applicant further indicated that she had been afraid to disclose her sexual orientation to either her family or anyone in Malaysia because lesbianism was forbidden in that country.
The applicant further deposed that she had never been in a same-sex relationship and had not herself encountered problems, in this regard, with the Malaysian authorities. She also indicated that she personally had never spoken out and expressed her opinion in support of LGBTI rights in Malaysia.
Prior to the hearing before it and after the ministerial delegate had made its decision, the Tribunal had formally invited the applicant to attend a hearing before it. This is commonly referred to as the section 425 invitation. It provides an applicant for review with an opportunity to provide additional information to assist in the Tribunal in its merits re-hearing. In formal terms, the invitation was as follows:
We have considered the material before us but we are unable to make a favourable decision on this information alone.
Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.[13]
[13] See Case Book at page 67 & 68.
The applicant received this invitation on 21 July 2020 approximately three weeks prior to the date scheduled for the AAT hearing. She did not avail herself of the opportunity to provide any additional information, particularly in respect of issues related to her personal sexuality and its implications for her claim for protection. Hence, prior to the hearing, the Tribunal could have had no advance notice that this would be an issue or axiomatically flag with her, in advance, any issues regarding possible inconsistencies in her claims for protection.
The Tribunal also set out country information regarding attitudes towards LGBTI issues in Malaysia, which it had obtained from the Department of Foreign Affairs & Trade. This information indicated that the Malaysian secular law criminalised same-sex acts but authorities rarely enforce such laws. However, Sharia law, in several Malaysian states, rendered same-sex sexual acts, between Muslims, illegal, potentially leading to the imposition of jail terms and whipping. The caning of woman, although banned under civil law, was allowed under Islamic laws in some states of Malaysia.
The relevant country information noted the largely conservative nature of Malaysian society and indicated that LGBTI individuals faced a moderate risk of discrimination as a consequence of their sexuality.
In respect of the country information available to it, the Tribunal accepted that, expressing views in Malaysia which is supportive of the LGBTI community and opposed to Sharia law’s treatment of the LGBTI community would be seen as causing harm to the Islamic religion and as being indicative of the expression of anti-government political opinions.[14]
[14] See Case Book at page 85 at [36].
The factual findings of the Tribunal can be summarised as follows:
·The applicant’s evidence lacked credibility as the evidence provided by her at hearing was inconsistent with her written claims for protection. These inconsistencies were regarded as being significant and central to her claims for protection.
·The applicant’s evidence, provided at hearing, regarding her sexual identity was vague and lacking in detail.
·A major inconsistency in the applicant’s case was her statement that she had been outspoken about LGBTI rights in Malaysia, which had come to the notice of the religious authorities in Malaysia, causing her to be charged and later flee the country. However, at hearing, the applicant stated that she had never spoken out about such issues, in Malaysia, or indeed come to the attention of the religious authorities.
·When these inconsistencies were put to the applicant, she indicated that she could not remember what she had put in her claim form. An explanation, which the Tribunal considered improbable.
·In these circumstances, the Tribunal did not accept that the applicant had spoken out about issues to do with the LGBTI community, in Malaysia. This was significant given that she was not able to provide information about LGBTI support organisations to the Tribunal.
·In these circumstances, the Tribunal did not accept that the applicant had spoken out publically to express support for the rights of the LGBTI community in Malaysia and, as a consequence, it did not accept that she had come to the adverse attention of the religious authorities in Malaysia. It found that the applicant had manufactured these claims in her written application.
·The claim made by the applicant, at the hearing, that she was a lesbian was a new claim.
Given the significance and centrality of this claim to the applicant’s claim for protection, the Tribunal would have expected that such a claim would have been detailed in her written application.
The Tribunal found the applicant’s evidence about her sexual identity to be vague and lacking in credibility. In this context, the Tribunal noted the difficulty arising for many individuals of having to discuss issues about their personal sexual identity to those in authority.
Of particular moment, so far as the grounds for review are concerned, the Tribunal indicated that it had explained to the applicant that issues germane to her credibility were raised before it as a consequence of what it viewed as being inconsistencies in her claim for protection raised in the written pro forma claim and in her evidence at hearing. In this context, the Tribunal formally indicated as follows:
At the hearing the Tribunal questioned the applicant about her sexuality in order to better understand her experiences of being lesbian and the reasons why she did not disclose this evidence in her protection visa application. The Tribunal explained to the applicant that the credibility of her claim was an issue because this claim was not raised in her protection visa application. As detailed above the applicant said that she could not remember what she had put in her claim form and did not provide further explanation. The Tribunal would have expected that if the applicant feared persecution in Malaysia because she was a lesbian this would be detailed in her claim for protection. It was not.[15]
[15] See Case Book at page 86 at [44].
As a consequence of its findings, the Tribunal did not accept that the applicant had spoken out in support of the rights of LGBTI individuals in Malaysia and was not satisfied that she was likely to be subject to persecution, in that country, because she identified as such. Rather, it found that she had manufactured her evidence to support her claim for protection.
As a further consequence, the Tribunal made the following formal findings:
…The Tribunal does not accept that there is a real chance that the applicant would suffer serious harm if she was to return to Malaysia because she is a lesbian or because she has come to the adverse attention of the religious authorities in Malaysia and was charged. The Tribunal finds the applicant does not have a well-founded fear of persecution because of her membership of a particular social group, her religious views or of her actual or imputed political opinion.[16]
[16] See Case Book at page 86 at [47].
Further, the Tribunal did not accept that the applicant satisfied the criterion relating to the complimentary protective considerations in section 36(2)(aa) of the Act as it was not satisfied she would suffer significant harm, if returned to Malaysia, because she is a lesbian or because she has spoken out in favour of LGBTI rights or is perceived to be anti-government and/or anti-religious on these grounds.
In these circumstances, the Tribunal affirmed the Ministerial Delegate’s decision not to grant the applicant a protection visa.
The Current Proceedings
As a consequence of this decision, on 21 August 2020, the applicant commenced proceedings, in this court, seeking a judicial review of the determination. Her application was self-drafted and contained generalised grounds of review, which asserted unreasonableness; illegality; and procedural impropriety. However, no particulars were provided of the grounds.
On 1 November 2022, solicitors acting for the applicant filed an amended application containing five particularised grounds of reviews which can be summarised as follows:
(1)The Tribunal committed jurisdictional error by failing to address the mandatory provisions of section 424A of the Act.[17]
(2)The Tribunal committed jurisdictional error by relying irrationally on asserted inconsistencies between the applicant’s written claims to the Ministerial Delegate and her oral evidence to the Tribunal.
The particulars of this are that it is illogical and irrational in the present matter to assert there is any such inconsistency given a person may be both an advocated for LGBTI rights and a lesbian as neither denies the other.
(3)The Tribunal committed jurisdictional error by failing to take a what if approach in respect of its findings regarding the applicant’s sexuality. By this, I take it, it is asserted that the Tribunal failed to apply the real chance test and so misapplied the provisions of section 36(2)(a) of the Act.
(4)The Tribunal committed jurisdictional error by taking into account irrelevant considerations.
The relevant consideration being that the Tribunal has failed to take into account the impact on the applicant’s life, if returned to live in Malaysia of having to live discretely.
(5)The Tribunal committed jurisdictional error by failing to apply the complementary protection provisions contained in section 36(2)(aa) of the Act.
[17] During the course of the hearing Dr Churches conceded that this ground should also be taken to include a reference to section 424AA of the Act.
LEGAL PROVISIONS APPLICABLE TO JUDICIAL REVIEW OF MIGRATION DECISIONS
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[18]
[18] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
Pursuant to section 476(1) of the Act, the Federal Circuit and Family Court of Australia (Division 2) has “the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution.” This provision of the Constitution confers original jurisdiction on the High Court in proceedings in which a prerogative writ is sought against an officer of the Commonwealth.
Accordingly, the court has the authority to grant the relief sought by the applicant by way of writs of certiorari and mandamus to quash the relevant Tribunal decision and require the re-hearing of the review but only in the event an error of jurisdiction is established.
In this context, it is important to emphasise that, in undertaking judicial review, this court is unable to examine the merits of the relevant decision under review or substitute its own findings of fact for those of the original decision-maker. As such, the court must be vigilant to avoid inadvertently transforming a process of judicial review into a re-hearing on the merits.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[19]
[19] See Craig v South Australia (1995) 184 CLR 163.
The classic description of an error, which goes to the jurisdiction of an administrative body, was described in the following terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[20]
What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.[21]
[20] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.
[21] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82].
In Minister for Immigration & Citizenship v Li [22] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[22] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75]–[76].
Following on from Li, in Minister for Immigration & Border Protection v Singh,[23] the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
[23] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437.
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. This refers to the process of reasoning, utilised by the relevant decision-maker concerned, in reaching a decision. It is focussed on process, including the application of any relevant statutory criteria to such a decision.
Secondly, the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question. This second area is outcome focussed.[24]
[24] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
Essentially, in conducting its supervisory jurisdiction over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme” not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[25] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[25] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.
In order to be successful in their application for review, it will be necessary for the applicant to demonstrate an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own discretion for that of the Tribunal or embark upon its own process of merits reviewing, which involves it making findings of fact in substitution for those of the Tribunal.
In Minister for Immigration & Ethnic Affairs vWu Shan Liang[26] the High Court warned that a court, such as this one, called upon to review a decision regarding refugee status:
…must beware of turning a review of the decisions of the decision-maker upon proper principles into a reconsideration of the merits of the decision.[27]
[26] Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259.
[27] Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 at [31].
As such, this court is required to give the reasons of the Tribunal a beneficial construction, which does not involve a degree of over-zealous scrutiny, which searches out error.
Ground 1
In order to understand this ground, it is necessary to detail the relevant provisions of the Act applicable to situations in which the Tribunal falls under an obligation to provide information to the applicant appearing before it to accord procedural fairness. The relevant sections are section 424AA and section 424A.
In this case, it is clear that a major factor leading to the Tribunal rejecting the applicant’s claim for protection stemmed from its view that there were material inconsistencies between what she had said in her written application and what she said to the Tribunal directly in her written evidence.
Section 424AA provides as follows:
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424A provides as follows:
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
As is apparent, section 424AA creates a discretion in respect of hearings occurring as a consequence of a section 425 invitation. However, once the discretion is exercised to provide the particulars in question, the manner in which the information is to be provided and the conditions attached to it are mandatory. This is the effect of section 424AA(1)(b).
On the other hand, section 424A creates a mandatory obligation incumbent on the Tribunal to provide particulars in respect of information available to it, which may have the potential to lead to an affirmation of the relevant decision. As I understand the applicant’s case it is that the mandatory requirements of section 424AA(1)(b) were not complied with and therefore the Tribunal did not acquit the jurisdiction conferred upon it.
The section makes reference to section 441A of the Act. This provides the various means by which the relevant information is to be provided to the applicant concerned. The means include hand delivery; service to a person at the place of residence of work of the applicant; dispatch by post; and transmission by electronic means. Each such channel being conducive to information being provided prior to a hearing.
On the other hand, section 424AA deals with the discretionary provision of information arising as a consequence of matters arising once the hearing itself has commenced and provides a mandatory regime as to how such information is to be provided. In both contexts, it is necessary for the Court to consider what is meant by the expression information as utilised in each provision and whether there has been any procedural unfairness accorded to the applicant, which is of sufficient moment to vitiate the decision in question.
The relevant decision of the Tribunal does not allude to either provision. It is, however, unequivocal that the Tribunal’s views regarding the inconsistencies characterised by it as being evident from a comparison of the applicant’s initial claim for protection with what she said in her oral evidence were material in it reaching the decision to reject her claim.
It is evident from the transcript of proceedings that this inconsistency arose during the hearing itself and was a topic raised with the applicant. Axiomatically, the applicant had not earlier alluded to any apparent change in her case prior to the hearing. The relevant passages, from the transcript, are as follows:
Member: Okay. So why do you now not want to return back to Malaysia?
Applicant: Because I'm very comfortable living in Australia, Member.
Member:Okay. Well, can you explain to me what makes it comfortable here? What makes it better living in Australia than in Malaysia?
…
Applicant:When I applied, Member, I stated that I was a lesbian. I am a lesbian, sorry.
…
Applicant:In Malaysia, lesbians are not accepted. I have to hide myself and my identity as a lesbian.
Member: Okay. So are you telling me that you identify as a lesbian woman?
Applicant: Yes, Member.
Member:Okay. Because I'm looking at your application form and you didn't declare that you were a lesbian or that you identified as a lesbian. You actually said that you were sympathetic to the LGBTI movement and you supported the movement, but you didn't actually say that you personally were a lesbian. So can you just clarify that inconsistency?
Applicant: I am part of that group and also it involves the religion.[28]
[28] See Exhibit B - Transcript at page 5.
At a later stage of the proceedings, the relevant member put his concerns regarding what he regarded as the inconsistencies in the applicant’s case more explicitly to her.
Member:Okay. I'm just concerned about the difference, the inconsistency in. what you've put in your claim form and what you're telling me now about your claims for protection.
So, first of all, you are telling me today that you are afraid to voice your opinions. You've never voiced your opinions publicly about the LGBTI community in Malaysia. And you're not aware of any community organizations.
And you said that you haven't had problems with the authorities in Malaysia because of your identity as a lesbian woman. But when I look at your claim forms, they are significantly different. First of all, you don't say that you are a lesbian woman. You say you have an open opinion about same sex marriage and LGTB relations. You say that you've spoken out about your opinions within the community. And this has caused anger and got you into trouble with the religious authorities. And that there have been charges against you and you fear going back because you'll be arrested and you may be caned or jailed. And that you had to escape from Malaysia because of the religious authorities persecuting you.
So I'm concerned that what you are telling me now is different from what you've put in your claim form. And I'd like you to explain that to me.
Applicant: I wrote those reasons, but I really can't remember much, Member.
Member:Okay. Well, it's important that you are able to articulate your claims. It's important that you give me an explanation about inconsistencies. And saying you don't remember is not really very helpful because you are giving evidence of your own life and your own experience.
So for example, if somebody claims that they were arrested and charged and fear jail and came and escaped to Australia, I would expect them to remember that as a significant event in their life.
So I'm concerned about that aspect of your evidence. Do you wish to say anything more about it?
Applicant: No, Member.
Member:Okay. Do you want to tell me more about your fears of returning back to Malaysia?
Applicant: I feel I have told you enough.[29]
[29] See Exhibit B - Transcript at page 8.
The two provisions arise at different stages of the review process but are directed towards the same end – namely securing procedural fairness for the applicant concerned. Both section 424A and 424AA are directed towards ensuring that an applicant is alerted to salient information which has the potential to be influential to the outcome of the case, either prior to the hearing or, when appropriate, during the hearing itself.
The Full Court discussed the inter-relationship of the two sections in SZMCD v Minister for Immigration & Citizenship.[30] In the case, Moore J succinctly summarised the working of the two provisions in the following terms:
It cannot be doubted that s 424AA and s 424A are intended to be complementary. This is obvious from the legislative history and the terms of both sections. The former section, if complied with, relieves the Tribunal of the duty imposed by the latter. The only possible point of uncertainty about the operation of the two sections, at least as revealed in these proceedings, is whether a possibly imperfect but unnecessary attempt to comply with the former might somehow give rise to jurisdictional error, irrespective of the fact that the circumstances did not create a duty to comply with the latter. [31]
[30] SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415.
[31] SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at 417 [2].
Also in SZMCD the majority of the Court (Tracy and Foster JJ) considered that the information covered by each of the sections must be the same. They said as follows:
Section 424A(1) prescribes what must be done. What must be done is subject to the exceptions in subs (2A) and subs (3). Section 424AA is thus facultative—it is one way by which the Tribunal can satisfy the substance of what is required of it under s 424A(1). If it elects to invoke s 424AA, it may do so expediently and by way of oral communication rather than by written communication. [32]
[32] SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at 432 [90].
The High Court discussed what was meant by the expression information in the context of section 424A in SZBYR v Minister for Immigration & Citizenship.[33] What the majority (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) said in the case can be summarised as follows:
·Section 424A does not require notice of every matter the Tribunal thinks is relevant to the matter under review;
·Information does not encompass that which was provided in support of the protection visa application itself;
·Given the use of the future tense in section 424A(1)(a) – information that the Tribunal considers would be the reason for affirming the decision – the application of the section is one which is to be determined by the Tribunal in advance of the hearing;
·As a corollary of this the section cannot be invoked after a hearing;
·Information does not encompass the reasoning processes of the Tribunal itself;
·Significantly, given the nature of the present matter, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1);
[33] SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [15] – [17].
In these circumstances, it seems to me to be axiomatic that the purpose of section 424A is to secure a fair hearing prior to the taking of evidence, whilst section 424AA is directed to the same objective in respect of matters arising during a hearing, if the need arises. However, the nature of information in each case is constrained. The majority in SZBYR indicating as follows:
However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.[34]
[34] SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [18].
Further it held that the concept of information does not entail any requirement on the Tribunal to give advance written notice not only of its reasons but of each step in its prospective reasoning process. Nor does it encompass the tribunal’s subjective appraisal, thought processes [and] identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps.[35]
[35] SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [18] citing VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 476.
Given the inter-relationship between section 424A and section 424AA, it is clear that the type of information reference by each provision is the same. In the current matter, it is clear that the inconsistencies which concerned the Tribunal arose during the course of the applicant’s evidence to it and were not apparent on the face of her written application. Accordingly, it was not possible for the Tribunal, even if it had been inclined to, to raise such inconsistencies with the applicant, in the mandatory format envisaged by section 424A.
Accordingly, in my view, in the current matter, only section 424AA can have application. The mandatory requirements engaged by sub-section (1)(b) apply only to information germane to the matter subject to merits review, namely whether Australia owed the applicant protective obligations under the provisions of section 36 of the Act and the various criteria specified there.
It did not include issues regarding the Tribunal’s assessment of the subjective credibility of the applicant in the light of what it regarded as major inconsistencies in her evidence regarding those criteria. It was, in my view, statutorily obliged to inform the applicant of its view that her evidence was unreliable and this had implications for how it would approach the disposition of her case.
In these circumstances, issues related to how the Tribunal was inclined to characterise the applicant’s evidence and what it regarded as telling inconsistencies between what she had said in her written application with what she said in her oral evidence was not information falling within the purview of section 424AA(1)(a) and therefore the provision of sub-section (b) were not engaged.
In Minister for Immigration & Citizenship v SZGUR[36] the High Court confirmed the application of SZBYR and said as follows in respect of the exclusion of matters relating to the Tribunal’s reasoning processes from the concept of information within section 424A (and by necessary implication also in respect of section 424AA) in the context of procedural fairness. The High Court (French CJ and Kiefel J) said as follows:
The exclusion of this class of information from the obligation imposed by s 424A is consistent with limits on the procedural fairness hearing rule at common law. Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal. Indeed it may be that such an invitation, once issued, amounts to a binding indication by the Tribunal that the review process will not be concluded until the applicant has had an opportunity to respond. But an invitation to comment on perceived inconsistencies and contradictions is not an invitation under s 424A.
[36] Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [9].
As I understand Dr Churches’ submission, he contends that the Tribunal should have done more to tease out from the applicant why she had not been frank about her sexuality in her written application for protection. Essentially this state of affairs led to a situation of procedural unfairness arising for the applicant.
This submission is posited on two assumptions – firstly the veracity of the applicant’s sexuality as disclosed by her in oral hearing and secondly that the Tribunal itself should have been aware, in these circumstances, that the applicant would have been embarrassed to disclose her situation, particularly given the cultural and social context from which she had come.
The findings of the Tribunal [at paragraph 37] indicates that it found the applicant’s evidence in respect of the nature of her sexuality, presented at hearing, to be vague and lacking in detail. In its reasons, in respect of her evidence, the Tribunal had found as follows:
The Tribunal asked the applicant when she started to identify as a lesbian. The applicant said she did not know. The Tribunal asked the applicant if she had been in a same sex relationship. The applicant said she had never been in a same sex relationship.
The Tribunal asked the applicant if she was open about her sexuality among family and friends in Malaysia. The applicant said she was afraid to demonstrate her feelings and did not disclose her sexual identity to her family or anyone in Malaysia because it was forbidden. The Tribunal asked the applicant if she could explain why being a lesbian was forbidden in Malaysia. The applicant said it was against God’s teachings.[37]
[37] Case Book at page 82 [20] – [21].
Necessarily, the Tribunal did not accept this aspect of the applicant’s case. In these circumstances, it seems to me to be artificial in the extreme, to contend that the Tribunal should have done more to elicit from the applicant, what was the nature of her case, when in answer to question put to her the applicant was not inclined to disclose more information.
It is not the function of the Tribunal to make the case for any applicant concerned or to seek it out, on their behalf. The fact remains the Tribunal was presented with an essentially different case for protection than the one which had been presented in the written application. It had not been given any forewarning that this would be the case and it caused the Tribunal to doubt the veracity of the second claim. It indicated its concerns to the applicant herself, who indicated she could not remember what she had written earlier. As will be indicated in the context of ground 2, it is an aspect of the merit review process for the Tribunal to make its own assessment of the credibility of claims put before it.
In any event, in my view, a reading of the relevant transcript, does not indicate that any species of procedural unfairness being accorded to the applicant in the manner in which the Tribunal exercised its discretion to raise directly with the applicant issues germane to the inconsistencies which it perceived in her evidence. She was given the opportunity to respond to the Tribunal’s concerns. In these circumstances, ground 1 is not made out.
Ground 2
As I understand this ground, it is the applicant’s contention that the process of reasoning, which the Tribunal reached the conclusion that the applicant’s evidence overall lacked credibility, is marked by illogicality. This stems from the fact that the Tribunal reasoned that there was an inconsistency in her written evidence seeking a protection visa, which centred on her outspoken support of LGBTI relations within Malaysia with her subsequent claim, at oral hearing, that she was herself a lesbian.
It is the applicant’s submission that the two assertions of fact are not inconsistent and therefore it was illogical for the Tribunal to conclude that the applicant’s evidence lacked credibility. I agree that a person can be both a supporter of LGBTI rights and a lesbian. Indeed, one would assume most individuals in the latter category would also be members of the former.
However, in my view, a fair reading of the Tribunal’s reasoning does not indicate any illogicality in respect of how it approached the applicant’s evidence. One of the central findings of the Tribunal was that it found aspects of the applicant’s evidence regarding her sexual identity to be vague and lacking in detail.[38]
[38] Case Book at page 85 [37].
It reached the same conclusion in respect of her original written claim to have had charges laid against her because she had spoken out about her opinions in the past, which had led her to come to the notice of the religious authorities. The Tribunal noted that these statements were inconsistent with her more recent evidence that she had been afraid to express her opinions and had, in fact, not expressed her opinions on LGBTI issues in Malaysia.
In my view, there can be no level of illogicality in the Tribunal contrasting the two claims for protection which are factually inconsistent. It did not find that a person could not be both a lesbian and a supporter of LGTBI rights per se. It found inconsistencies in the basis of the two claims for protection put forward by the applicant and its overall dissatisfaction with the evidence she provided to it.
More significantly, in my view, findings in respect of credibility are fundamentally a matter to be resolved at the level of merits review, which involves the taking and assessment of evidence. In my view, it is not open to this court to substitute its own findings in respect of credit for those of the Tribunal. As has been indicated in a number of cases, assessment of credibility is a matter for the Tribunal par excellence.[39]It is an essential aspect of its fact finding jurisdiction.
[39] See Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
As Kirby J remarked in Minister for Immigration & Ethnic Affairs v Wu Shan Liang:
The decision-maker will usually have advantages over the reviewing judge in evaluating evidence and submissions. Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material. But there are additional reasons for restraint and resistance to any temptation to turn a case of judicial review into, effectively, a reconsideration of the merits. [40]
[40] Minister for Immigration & Ethnic Affairs v Wu Shan Liang 185 CLR 259 at 292.
ground 3
This ground rests on the submission that the Tribunal applied the wrong test or considered the wrong principles in determining, within the parameters of section 5J of the Act, whether the applicant had a well-founded fear that she would be subjected to persecution, on account of her sexual orientation or opinions, if returned to Malaysia. Whether such a fear was well-founded turned on the Tribunal’s assessment of whether there was a real chance she would be subject to persecution because of the attributes which she claimed she had.
Necessarily, as such a fear depended on what would happen to the applicant, in the future, if she was returned to Malaysia, this exercise is speculative in its nature. The applicant submits that the Tribunal did not probably consider the possible permutations open on the case presented by the applicant and so committed an error of jurisdiction.
The test is also subject to a significant proviso. If a person could take reasonable steps to avoid a real chance of persecution, in their country of origin, such a person does not qualify for refugee status. However, it is not necessary for such a person to conceal an innate or immutable characteristic of their person or to alter their sexual orientation.
Accordingly, in a case like the current one, an applicant, who was accepted to be a lesbian, need not modify or conceal an immutable or innate aspect of their personality or being, namely their sexuality, in order to claim refugee status, if the other considerations arising under section 5J were satisfied.
The High Court has established that the definition provided by section 5J has both subjective and objective elements. The question to be asked by the relevant decision maker being does the applicant subjectively fear persecution and is that fear objectively well founded.
In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned if he or she is returned to the country. Necessarily these matters are predictive in nature. They are often encapsulated under the rubric of the real chance test.
In this context, the High Court has said as follows:
The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant …
Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. …[41]
[41] AppellantS395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 478 – 479 [73] – [75].
In cases such as Chan v Minister for Immigration and Ethnic Affairs[42] and Minister for Immigration and Ethnic Affairs v Guo,[43] the High Court has indicated that a fear can be well-founded even if there is no certainty or even probability that it will be realised; or even though there is only a ten percent chance that persecution will occur. However far-fetched possibilities of persecution must be excluded.
[42] Chan v Minister for Immigrationand Ethnic Affairs (1989) 169 CLR 379.
[43] Minister for Immigration and Ethnic Affairs v Guo (1997) 1997 CLR 559.
Dr Churches relies on DQU16 v Minister for Home Affairs[44] in which the High Court provided the most recent iteration of the real chance test as follows:
A "real chance" is a prospect that is not "remote" or "far‑fetched": it does not require a likelihood of persecution on the balance of probabilities. Section 5J(3) provides exceptions to what constitutes a well‑founded fear of persecution. It provides that a person does not have a well‑founded fear of persecution "if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country", unless the modification, among other things, relates to fundamental, innate or immutable characteristics.
[44] DQU16 v Minister for Home Affairs (2021) 95 ALJR 352 at [10].
In this context, he submits that a finder of fact, in respect of refugee status, unless absolutely satisfied of all relevant factors regarding the relevant application, must take a what if approach to fact finding and the consequence of such facts being found. In the current matter, he points to the fact that the Tribunal had available to it country information which indicated that same-sex sexual acts were illegal, under Sharia Law, in several Malaysian states and could incur imprisonment and whipping.
In this context, the information indicated that two women had been caned in Terengganu State in October 2018, which, in Dr Churches’ submission, was congruent with the claims advanced by the applicant in the current matter. In these circumstances, he contends that the Tribunal failed to properly perform the real chance test given the objective circumstances available to the Tribunal.
In my view, the difficulty with this submission is that the Tribunal did not accept that the applicant was a lesbian. This finding did not derive from the issues identified by the Tribunal arising from the inconsistencies apparent from her written claims for protection and her oral evidence at hearing. Rather, when the applicant asserted she was a lesbian at hearing, it was as a consequence of her response to questions regarding her sexuality put to her by the Tribunal that it (the Tribunal) reached the conclusion that she (the applicant) was not one.
It is an element of Dr Churches’ submission that the Tribunal was procedurally unfair to the applicant in the manner in which it broached these issues with her and should have been more empathetic of her situation as a young person, who was in a foreign cultural milieu in which she was compelled to talk about deeply personal and potentially embarrassing matters to strangers.
As a consequence of the manner in which the applicant chose to advance her case at hearing – essentially on a different basis to that which she had advanced in her written application – the Tribunal was compelled to deal with the claim as best it could. Essentially, it had to assess the applicant’s claims being aware of the sensitivity of the matters raised by the applicant. In my view, this was the central aspect of its fact finding jurisdiction. As such, it is not open to this court, on merits review, to substitute its own judgment as to how these issues were to be broached with the applicant.
In its reasons, the Tribunal alluded to the axiomatic problems which arose in respect of the manner in which the applicant had elected to present her case. After considering her evidence, including the lack of what it regarded corroboration of her sexual orientation, the Tribunal made the finding that the claim of being a lesbian had been manufactured to bolster her protection visa application. This is a finding of fact, based on credibility findings.
The relevant portion of the Tribunal’s reasons is as follows:
The Tribunal has also considered the applicant’s evidence about her sexual identity and finds it vague and lacking in credibility. In assessing the credibility of the applicant’s evidence, the Tribunal is acutely aware that it is difficult for many people to openly discuss evidence of a personal nature regarding their sexual identity. The Tribunal finds the applicant was unable to provide a convincing narrative of when or how she became aware she was attracted to women. She claimed she was open about her sexuality with friends in Australia, but no witnesses provided evidence in support of her claim. Importantly, as detailed above, the applicant did not declare she was a lesbian in her written claims.
The Tribunal has carefully considered the totality of the applicant’s evidence and did not find her claim that she is a lesbian or a person who has spoken out in support of the rights of the LGBTI community in Malaysia convincing or persuasive. The Tribunal has had regard to the applicant’s evidence and is not satisfied that she fears persecution in Malaysia because she identifies as a lesbian. The Tribunal finds that the applicant manufactured this evidence so that she could strengthen her claims for protection in circumstances where her protection visa application was refused by the Department.[45]
[45] See Case Book at page 86 [45] – [46].
As indicated above, issues relating to the assessment of the credibility of the claims of a person seeking refugee status fall within the purview of the relevant decision maker and are not ordinarily subject to judicial review because of the risk of transforming such a process into one of merits review. That is not to say that a court, on judicial review, is disqualified from examining the manner in which the fact finder in question reached the relevant finding in respect of credit.
In DAO16 v Minister for Immigration & Border Protection[46] the Full Court observed:
While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings … are beyond scrutiny on judicial review … The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae … In each case it is necessary to analyse in detail what the decision-maker has decided…
[46] DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2 at [30].
In the present matter, it seems to me that the Tribunal did turn its mind to the potential difficulties confronting the applicant, if her claim was accepted. However, it did not accept her claim. Rather it concluded that, in all the circumstances, it had been manufactured. In my view, such a finding cannot be characterised as been illogical or irrational or to have been one reached through the application of a procedurally unfair process.
Given its finding that the applicant had manufactured her claim of being a lesbian, it must logically be the case that it also concluded that there could be no real chance that she could be subject to persecution on such a basis. In addition, there can be question of her being required to abandon or modify an essential prerequisite of her personality or being.
In these circumstances, I accept the submission of Mr Sharpe, counsel for the Minister, that the following passage from the majority of the High Court in Minister for Immigration and Ethnic Affairs v Guo is apposite to the current matter:
In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong. [47]
[47] Minister for Immigration and Ethnic Affairs v Guo [1997] 1997 CLR 559 at 576 at [61].
Given its findings the Tribunal was not required to engage in any degree of speculation regarding the situation likely to confront the applicant if returned to Malaysia. It had no real doubt regarding her safety in that country as a consequence of its findings, which were unconditional. In these circumstances, I do not consider ground 3 is established.
Ground 4
In my view, ground 4 is closely related to ground 3. It is posited on the basis that the Tribunal did not properly consider whether the applicant was, as she claimed at hearing, a lesbian and therefore did not turn to consider the issues engaged by section 5J(3) namely whether it erroneously reached the conclusion that the applicant could live discretely in Malaysia in respect of her sexuality and so took into account an irrelevant consideration.
Again, as I understand this submission, it turns on the nature of the country information available to the Tribunal. This information indicated that the Malaysian authorities oppose LGBTI lifestyles and encourage Muslim LGBTI individuals to undergo sexuality rehabilitation or are otherwise compelled to undergo conversion therapy.[48]
[48] See Case Book at page 84 [35].
In these circumstances, it is submitted that the Tribunal failed to consider the real chance test in the context of the provisos provided by section 5J(3). In my view, this contention must fail for the same reasons which led to the dismissal of ground 3, namely it was not necessary for the Tribunal to consider this potential aspect of the claim given that it had rejected the applicant’s claim that she was at risk of suffering persecution, on the basis of her sexuality, on the grounds that it was considered that this claim had been manufactured.
ground 5
This ground relies on a submission that the Tribunal erroneously bundled up it requirement to make a determination as to whether the applicant was a refugee, who was owed protection by Australia [section 36(2)(a)], with its obligation to determine whether she satisfied the complementary protection obligations under section 36(2)(aa) on the basis that she was a real risk of suffering significant harm in the form of being subjected to the cruel and inhuman treatment or punishment represented by caning, on account of her sexuality.
As was pointed out in DQU16 v Minister for Home Affairs[49] the Act provides for two criteria for the grant of a protection visa namely:
·the applicant is a non‑citizen in Australia "in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee" under s 36(2)(a); and;
·if the applicant does not satisfy that criterion, that the applicant meets the complementary protection criterion under s 36(2)(aa), which gives effect to some of Australia's non‑refoulement obligations under international instruments.
[49] DQU16 v Minister for Home Affairs (2020) 95 ALJR 352.
As I understand the submission, it is asserted that the Tribunal considered the first criterion but inadequately addressed or considered the second. I do not accept that this was the case. It must be conceded that the prospect of caning must represent significant harm under the terms of the Act and trigger Australia’s obligations under applicable international treaties.
However, having found that the applicant was not a lesbian and therefore any consideration of her having to modify her behaviour or live discretely was not a relevant consideration, so in turn was the prospect of her suffering significant harm, if returned to Malaysia.
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.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 10 March 2023
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