ENC18 v Minister for Immigration and Anor and END18 v Minister for Immigration and Anor

[2020] FCCA 2318

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENC18 v MINISTER FOR IMMIGRATION & ANOR and END18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2318

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visas – two separate review applications heard together – applicants are in a same sex relationship – claims to fear harm based on sexuality – whether the Tribunal failed to have regard to or misunderstood evidence relating to the Applicants being ‘private’ people – whether the Tribunal failed to have regard to an integer of END18’s claim that she feared harm based on her choice of dress – Applications dismissed. 

Cases cited:

Minister for Immigration and Citizenship v SDMDS (2010) 240 CLR 611; [2010] HCA 16
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184

Applicant: ENC18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2620 of 2018

Applicant: END18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2621 of 2018

Judgment of: Judge Blake

Hearing date: 15 July 2020

Date of Last Submission: 15 July 2020

Delivered at: Melbourne

Delivered on: 21 August 2020

REPRESENTATION

Counsel for the Applicants in both matters: Mr Aleksov

Solicitors for the Applicants in both matters: Clothier Anderson Immigration Lawyers

Solicitor Advocate for the First Respondent both matters: Mr Cunynghame

Solicitors for the First Respondent in both matters: Sparke Helmore Lawyers

ORDERS

IN PROCEEDINGS MLG2620 of 2018

1. The Application filed on 31 August 2018 and amended on 29 June 2020 be dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $5,000.

IN PROCEEDINGS MLG2621 of 2018

1. The name of the First Respondent be changed to “Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs”.

2. The Application filed on 31 August 2018 and amended on 29 June 2020 be dismissed.

3. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2620 of 2018

ENC18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

MLG 2621 of 2018

END18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court are two separate applications to review two separate decisions of the Administrative Appeals Tribunal (‘Tribunal’). They are the matters of ENC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (‘ENC18’), and END18 v Minister for Home Affairs & Anor (‘END18’).

2. The Applicants in each of these matters are in a same sex relationship and have been for some years prior to arriving in Australia. Both Applicants arrived from Malaysia on 22 January 2016. Each applied for protection (subclass 866) visas (‘visa’). The delegate in each case refused to grant the visa.  Each of the Applicants then applied to the Tribunal for a review the relevant decision of the delegate.  The Tribunal subsequently affirmed the decision of the delegate in each case.

3. Each of the Applicants then applied to this Court for a review of the relevant decision of the Tribunal affecting them.  The Applicants sought to have their applications in this Court heard together and a consent order was subsequently made on 7 July 2020, giving effect to this. I subsequently heard oral argument in respect of both applications for review on 15 July 2020.

4. For the reasons that follow, I have decided to dismiss both of the applications for review.

Background

1. The Applicants are Malaysian nationals. They both arrived in Australia on 22 January 2016 on tourist visas. They applied for the visas on 8 April 2016.

2. On 28 September 2016, a delegate of the Minister (‘delegate’) refused to grant the Applicants the visas.

3. On 29 September 2016, the Applicants applied to the Tribunal for review of the delegates’ decisions. Both Applicants attended a hearing before the Tribunal on 7 December 2017. The Applicants each had their own hearing before the same Tribunal member.

4. On 15 August 2018, the Tribunal affirmed the decision not to grant END18 the visa. On 20 August 2018, the Tribunal affirmed the decision not to grant ENC18 the visa

5. The Applicants filed their Application for reviews and affidavits in support to this Court on 31 August 2017. Each affidavit annexed the Tribunal’s and delegate’s decision.

6. Each of the Applicants subsequently filed, among other things, an amended Application for Review (referred to in each matter below as the ‘Application’), an affidavit of Sanmati Verma, lawyer, affirmed on

   
   

   26 June 2020 which annexed a transcript of the Tribunal hearing in each matter and written submissions. The Minister subsequently filed written submissions in both matters on 7 July 2020.

The Application by ENC18

1. There is a single ground of review in the Application by ENC18. It is as follows:

   ‘The Administrative Appeals Tribunal (the Tribunal) failed to have regard to important evidence in respect of the applicant’s claims for protection and/or acted unreasonably in finding that the applicant had a ‘private nature.’’

2. This ground takes issue with, inter-alia, the reasoning of the Tribunal set out in paragraph [41] of its reasons.  Paragraph [41] of the decision of the Tribunal provides as follows:

   ‘The applicant has a private nature and this arises out of her personal choices, and does not arise out of any fear of harm. I find that the applicant might have been open about her sexual identity in Malaysia, had she chosen to do so, without facing a real chance or real risk of harm. Discretion was not needed for her in Malaysia in her identity, though her nature would likely lead her to exercise discretion, as she has done in Malaysia and Australia, to be a more private individual. From the evidence approximately 20 people know of her sexual orientation - this is a smaller number and it includes people in Australia in her present life.  The applicant has not included family in the circle of people who know, even after settling in Australia.’

3. In respect of this ground of review, ENC18 submits among other things as follows:

   a)She gave evidence at the Tribunal in relation to the relationship, and, among other things, the reaction of others whom she knew about that relationship (Transcript page 7-8, 10, 12);

   b)During the Tribunal hearing, she was questioned and gave evidence about how she lived. The exchange that ENC18 places emphasis on is (Transcript page 13):

   ‘T: Well the Department said you are a more quiet person and you could live discreetly in Malaysia.

   A: Yes but not to live openly. Everything will have to be done at home and in private, but we cannot do it in public.’

   c)Read fairly, ENC18 was saying that she wished to lead a normal life, but could not do so because of, inter-alia, the harassment she experienced in Malaysia.

   d)The Tribunal misconstrued or misunderstood what the Applicant was saying and accordingly did not consider the evidence above or failed to engage with evidence that was important;

   e)Separately, the finding that ENC18 has a ‘private nature’ in paragraph [41] of the reasons is illogical, irrational, or unreasonable because it is not supported by the evidence.

4. In assessing these matters, it is important to consider both the evidence given by the Applicant to the Tribunal and also the reasons of the Tribunal.  Insofar as the evidence given by ENC18 to the Tribunal is concerned, the Transcript discloses the following:

   a)ENC18 has been in a same sex relationship with END18 for around 5 years and they were living together from 2011 (Transcript pages 4 – 5);

   b)approximately 20 friends knew of the relationship between ENC18 and END18 (Transcript page 7);

   c)she feared that her family would not accept her homosexuality and may try to place her in a rehabilitation centre (Transcript page 7).

5. In its decision, the Tribunal, among other things:

   a)set out the claims for protection at paragraphs [9] and following.  Those claims, among other things, focused on ENC18’s claims to fear persecution and significant harm on the basis that she was a homosexual, or was a person perceived as a homosexual;

   b)accepted that ENC18 identified as a homosexual at paragraph [38];

   c)found that ENC18 had experienced criticism and pressure from friends and members of the public in Malaysia, but was not satisfied that such experiences ‘involved serious harm amounting to persecution, or significant harm’ (at [39]);

   d)accepted that ENC18 came to Australia to work, and live in a more open and accepting society (at [40]);

   e)made the finding at paragraph [41] outlined above that the Applicant ‘has a private nature’;

   f)made a finding that ‘the applicant partner’s family will not potentially harm her. The applicant made a general and vague claim that some harm would befall her due to the attitude and status of her partner’s family, yet produced little elaboration of what this might involve’ (at [42]);

   g)accepted that it may be difficult for ENC18 to come out in Malaysia, but did not accept that any difficulty of identifying as a homosexual to her family and friends would constitute serious or significant harm (at [43]);

   h)noted that ENC18 had not produced evidence of being questioned or dealt with by secular or religious authorities (at [44]);

   i)despite the paucity of the evidence, accepted that ENC18 had faced harassment and groping, but that such was not of a severity as to amount to persecution (at [45]);

   j)found at paragraph [46] that the ‘applicant made remarks on the prospect of harm if she went to Malaysia – in regard to harm from physical violence she said “perhaps not”, but there would be mental and verbal abuse. Yet her evidence on these points was disjointed and piecemeal, as described above’;

   k)found the Applicant has not experienced and does not have an immediate fear of persecution or significant harm in Malaysia (at [47]);

   l)was not satisfied that ENC18 would suffer serious harm or persecution in Malaysia (at [50] – [59]). 

6. A cursory review of the decision discloses that the Tribunal set out, at some length, the evidence and claims made by ENC18.  Paragraphs [13] – [37] of the decision detail the evidence given by ENC18.  There are two observations to be made about this recitation of the evidence.  First, it is, in the circumstances of this case, a reasonably comprehensive summary of the evidence given by ENC18.  It is not necessary for a tribunal to recite line by line all of the evidence it received.  Second, the summary of the evidence broadly reflects the manner and order in which ENC18 gave evidence to the Tribunal when regard is had to the Transcript. Third, the Tribunal clearly had concerns about aspects of the evidence given by the Applicant, describing aspects of it as variously vague, piecemeal or disjointed.

7. ENC18 contends, inter alia, that while paragraph [33] of the reasons of the Tribunal record the question put by the Tribunal that she was a quiet person, the Tribunal does not record her answer.  I accept that the answer is not summarised.  However, the failure to refer to the direct evidence given does not mean there was a failure to have regard to it in circumstances where the evidence of ENC18 was comprehensively summarised, and where the Tribunal has expressly referred to the matter that is said not to have been considered.  In my view, paragraph [33] points to the Tribunal being aware of the issue and having considered it.  This is not a case where there is no reference at all to the issue that ENC18 says was not considered.

8. There are then the other findings or observations made by the Tribunal in relation to this matter.  These include the following:

   a)ENC18 and END18 had met at a friend’s house in May 2011 and has started living together (at [16]);

   b)despite the length of the relationship, ENC18’s family was unaware of the relationship and remains so (at [19]);

   c)only some 20 friends knew of ENC18’s homosexuality (at [19]);

   d)some Army officials only found out about her sexuality ‘through her friends’ (at [25]);

   e)ENC18 responding negatively to the question of whether she feared for her safety. At paragraph [35] of its decision, the Tribunal records the following;

   ‘From the evidence, I find the applicant did not suffer from persecution but suffered from discrimination, as per the opinion of the applicant. The applicant was asked whether she was in fear of her life to which she replied that she is afraid of being detained by the religious Department. The applicant was asked whether she felt threatened as to her physical safety to which she replied "no". The applicant was asked whether she had a real risk of significant harm to which she replied “no”.’

   f)the Tribunal accepting that while it may be difficult for ENC18 to come out to more people in Malaysia, it finding that doing so did not constitute serious or significant harm (at [43]);

   g)ENC18 not providing any evidence of being questioned or dealt with by secular or religious authorities (at [44]); and

   h)notwithstanding the paucity of evidence, the Tribunal accepting that she has faced harassment from others, but that it was not such as to amount to persecution (at [45]).

9. There is then the finding at paragraph [41] of the Tribunal’s reasons, which I have set out above, and with which ENC18 takes issue.  It is relevant to note that, in that paragraph, the Tribunal member records a finding that ENC18 might have been more open about her sexuality in Malaysia had she chosen to do so.  The Tribunal also notes that she had exercised discretion, both in Malaysia and in Australia, to be a more private individual and that she has not included her family in the circle of people who know about the homosexuality.

10. When all of the above is considered, the following emerges. First, the Tribunal understood what ENC18 was saying. There was not a misunderstanding. Second, the Tribunal considered that evidence and weighed that evidence with all of the other available evidence. Third, the Tribunal having weighed all that evidence formed the view that ENC18 was not at risk because she was a person with ‘private nature’. That was a finding that was open to the Tribunal to make, given the matters to which I have referred above.

11. ENC18 also challenges the finding made in paragraph [41] that she is a person with a ‘private nature’ on the basis that it was illogical, irrational or unreasonable.  In order to satisfy a Court that a finding is illogical, irrational or unreasonable, an applicant must satisfy a high bar that requires more than disagreement with a decision of the Tribunal: see Minister for Immigration and Citizenship v SDMDS (2010) 240 CLR 611 at [124] and [129].

12. When all of the above matters are considered, I am of the view that the conclusion reached by the Tribunal was not one that was illogical, unreasonable or irrational.  I am satisfied that the finding was open to the Tribunal on the basis of the evidence before it.  I have referred to that evidence above and note that it includes that ENC18 had been living as a homosexual since 2011, her family were not aware of her homosexuality, and  only some 20 family or friends knew about her homosexuality.  Further, the finding was made in circumstances where ENC18 did not suggest she lived or conducted herself in an outward manner, and in circumstances where there was not evidence of ENC18 being questioned or dealt with by the secular or religious authorities.

13. For all of the above reasons, the Application by ENC18 must be dismissed.

The Application by END18

1. There are two grounds of review in the Application filed by END18.  I deal with each of them below.

Ground 1

1. The first ground of review is as follows:

   ‘The Administrative Appeals Tribunal (the Tribunal) failed to have regard to important evidence in respect of the applicant’s claims for protection and/or acted unreasonably in finding that the applicant had a ‘private nature.’’

2. While the above ground of review  refers to END18’s ‘private nature’, I have on the basis of the submissions made taken it to be a complaint about the Tribunal’s findings that the Applicant  lived in a ‘quiet fashion’ at paragraph [29] of the Tribunal’s reasons.

3. END18’s submission in respect of this ground is based on evidence that she said was misconstrued and not dealt with by the Tribunal.  That evidence, extracted from the transcript, is set out below:

   ‘T: Have you had any trouble with the Islamic Religious police or Department?

   A: No

   T: Have you ever seen them around?

   A: They are out and about in Kuala Lumpur, but I seldom go out, I am afraid of this.’[1]

   [1] Page 6 of the transcript of the Tribunal hearing.

   …

   ‘T: Well you lived with your partner for 5 years in Malaysia in a lesbian relationship, sharing the same house with her, and you have never been in trouble with the religious authorities or the government authorities.

   A: We live in a gated community so not everyone can enter. Those who want to see us have to go through a security guard.

   T: So you were hidden away?

   A: Yes

   T: And that explains why you didn’t have the authorities bothering you?

   A: Yes, that was one of the reasons. And another was that I seldom go out with [ENC18].

   T: Ok.

   A: When we went out it would be in a group.

   T: I could say that about heterosexual couples – good Muslim Malay heterosexual couples that are women, they don’t go out on their own anyway, they go out with their husband and relatives.

   A: Yes I went out with a group including straight people so people would not single me out.

   T: Do you think the authorities could protect you in case you faced harm?

   A: No. Because they will say that this is your own doing. Men do not like to see a woman dressed as a man. They do not like that.’[2]

   [2] Pages 8 to 9 of the transcript of the Tribunal hearing.

4. END18’s submission in relation to these matters is that what she was saying to the Tribunal, when her evidence is looked at fairly and as a whole, was that she could not go out openly in Malaysia, given the actual harassment she experienced.  It is contended, among other things, that this was not properly understood by the Tribunal, and the Tribunal therefore failed to consider it.

5. I am not persuaded that the Tribunal failed to consider this evidence as claimed by END18. 

6. The Tribunal set out the evidence of END18 at some length from paragraphs [13] – [37] of its reasons. This included the Tribunal expressly setting out evidence of the Applicant living in a gated community at paragraph [31] of its reasons. The Tribunal also at paragraph [32] of its reasons referred to END18 going out with relatives in a larger group.  The references to both of these pieces of evidence by the Tribunal is significant.  This evidence was given contemporaneously with END18’s evidence that she seldom goes out.  This provides a strong inference that the Tribunal was well aware and considered END18’s evidence in relation to her ability to go out.

7. There is then the submission that her evidence was misunderstood or misconstrued.  It is apparent from the transcript on page 8 extracted above that END18 gives two reasons as to why the authorities have not bothered her.  First, she lives in a gated community.  Second, that she seldom goes out.

1. It is significant, in my view, that END18 says that she ‘seldom’ goes out with ENC18.  She does not say, significantly, that she ‘could not go out’ as she contends.  Nor does she say expressly that she fears harm from going out.

2. END18 seeks to overcome this issue in the following way. She points to   page 6 of the Transcript (also extracted above). There, she is asked a question about whether she has had any trouble with the Islamic Religious police, or Department. She answers by saying ‘They are out and about in Kuala Lumpur, but I seldom go out, I am afraid of this’.  In my view, this does not assist her.  Her first response to this question about observing the authorities is that she seldom goes out.  This, if anything, is reinforced by her later answer on page 8 of the transcript, that she seldom goes out with ENC18.  The reference to ‘I am afraid of this’ does not indicate what she is afraid of, or that she is afraid of going out, or seldom goes out, because of harassment or fear on the basis of her sexuality at the hands of, inter alia, the religious police.

3. There is then the other evidence that the Tribunal had before it in relation to whether END18 lived in a quiet fashion and whether this was personality driven.  This includes the following:

   a)END18’s own evidence that she did not mix greatly with others in Australia (at paragraph [21] of the Tribunal’s reasons);

   b)As noted previously, END18’s own statements that she ‘seldom’ went out, which she stated on two occasions (page 6 and page 8 of the Transcript);

   c)the Tribunal finding at paragraph [39] that ‘there is no suggestion that she has concealed her sexuality, or considered it necessary to change her appearance or conduct’.

4. END18 also submits under this ground that the finding that she lives in a ‘quiet fashion’ is a finding that is unreasonable, illogical or irrational.  I have already set out the principles that govern how such claims are to be assessed.

5. In my view, for the reasons set out above, the Tribunal did not fail to consider the evidence of END18.  Nor did the Tribunal misunderstand or misconstrue that evidence.  In my view, for the reasons I have adverted to, it was open to the Tribunal to find, on the evidence, that END18 ‘lived in a quiet fashion’ and that this was ‘personality driven’. Such finding was not unreasonable, illogical or irrational. Accordingly, I dismiss ground one of the grounds of review.

Ground 2

1. The second ground of review in the Application  is:

   ‘The Tribunal failed to have regard to an integer of the applicant’s claims arising from her fear of harm as a woman who ‘dressed like a man.’’

2. A review of the END18’s evidence set out pages 5, 7 and 9 of the Transcript reveals that she stated that she faced repercussions because of her dress (she dressed similarly to a man).  Her evidence in this respect included that men harassed her and questioned her (Transcript page 5), men could not accept the way she dressed (Transcript page 5), she had not been invited to a function because of the way she dresses (Transcript page 6), and the authorities would not protect her because they do not like to see a woman dressed as a man (Transcript page 9).   In respect of these matters, END18 says they formed a discrete claim, or an integer of her broader claim, which was not evaluated by the Tribunal.

3. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, a Full Court of the Federal Court stated as follows at [47]:

   ‘The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.’

4. It is important to observe that the central claim advanced by END18 was that she feared harm or persecution on the basis of being a lesbian or a Muslim lesbian.  The Tribunal accepted that END18 had experienced criticism and pressure because she was a lesbian or a Muslim lesbian, but was not satisfied that it amounted to persecution or significant harm (at [39]).

5. It is also necessary to observe that the Tribunal made an express finding that ‘there is no suggestion that she has concealed her sexuality, or considered it necessary to change her appearance or her conduct’ (at [39]).  Further, at paragraph [48] of its reasons, the Tribunal found that ‘I am also not satisfied – again having regard especially to her past conduct – that the applicant ever has, or will need to in the future, modify her conduct (or appearance) or otherwise take measures in order to avoid persecutory harm’. This is a significant finding. The Tribunal was satisfied that END18 had not concealed or changed her ‘appearance’ or ‘conduct’. The Tribunal nevertheless found, however, any criticism or pressure she faced did not amount to significant harm.

6. Finally, this is not a case where the Tribunal has not referred at all to the difficulties END18 claimed to face when dressing like a man.  At paragraph [24] of its reasons, the Tribunal records that END18 claimed to have experienced verbal violence because of ‘people demanding to know why she was not more like other women’.  Then, at paragraph [33], the Tribunal records that ‘when it came to authorities being able to protect her she said they could not.  She said they would not like to see a woman dressed like a man’.  In my view, these paragraphs identify the issue concerning END18’s dress.

7. Accordingly, when the matters considered above are examined in their totality, I find that any claim or integer of a claim by END18 in relation to dressing like a man was dealt with by the Tribunal and subsumed in the Tribunal’s broader findings.  The matter had clearly been identified by the Tribunal. There was no need for it, therefore, to make a specific finding because it was subsumed in findings of greater generality.

8. For all of the above reasons, I dismiss ground two of the grounds of review.

9. It is apparent from what I have set out above that each of the Applications before me must be dismissed.  I award costs to the Minister in each case in the sum of $5,000.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date:          21 August 2020