Enc18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 686
•24 June 2021
FEDERAL COURT OF AUSTRALIA
ENC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 686
Appeal from: ENC18 v Minister for Immigration & Anor and END18 v Minister for Immigration & Anor [2020] FCCA 2318 File numbers: VID 608 of 2020
VID 610 of 2020Judgment of: MIDDLETON J Date of judgment: 24 June 2021 Legislation: Migration Act 1958 (Cth) Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 67 Date of hearing: 25 May 2021 Counsel for the Appellants: Mr A Aleksov Solicitor for the Appellants: Clothier Anderson Immigration Lawyers Counsel for the First Respondent: Mr A Cunynghame Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent filed a submitting notice in the proceeding, save as to costs ORDERS
VID 608 of 2020 BETWEEN: ENC18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
VID 610 of 2020 BETWEEN: END18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
MIDDLETON J
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MIDDLETON J:
INTRODUCTION
These appeals are brought from a decision of the Federal Circuit Court (‘FCC’): ENC18 v Minister for Immigration & Anor and END18 v Minister for Immigration& Anor [2020] FCCA 2318 (21 August 2020) (‘FCC Decision’).
Before the FCC there were two separate applications to review 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’).
The respective appellants in each of these appeals are in a same-sex relationship and have been for some years prior to arriving in Australia. Both appellants 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 appellants then applied to the Tribunal for a review of the relevant decision of the delegate. The Tribunal subsequently affirmed the decision of the delegate in each case.
Each of the appellants then applied to the FCC for a review of the relevant decision of the Tribunal affecting them. The appellants sought to have their applications in the FCC heard together. The FCC heard the applications for review together and dismissed both of the applications.
It is convenient to proceed as did the FCC to hear and determine both appeals together.
ENC18
Background
As I have indicated, ENC18, a citizen of Malaysia, arrived in Australia on 22 January 2016. On 8 April 2016, ENC18 applied for the visa. ENC18’s claims were articulated in her visa forms. In summary, she claimed that as a result of being in a homosexual relationship, which is forbidden in Malaysia, and because Malaysia is a Muslim country against lesbian, gay, bisexual, transgender or intersex (‘LGBTI’) persons, she has been discriminated against by friends and business clients and fears she will be mistreated due to her sexuality if she returns to Malaysia.
It is to be noted that on the visa forms in response to the question “What do you think will happen to you if you return to that country(s)?” ENC18 stated “There will be constraint of circumstances from surroundings that will effect [sic] my personal life”. Then in response to the question “Why did you leave that country?” ENC18 responded “Because of pressure received from surroundings after they learned about my sexuality preference…I was discriminated by some friends and business clients…I want to start new in a different country to seek happiness before I can share my love and happiness with others”.
On 28 September 2016, the delegate refused to grant ENC18 the visa. The delegate was not satisfied that ENC18 would face serious or significant harm based on her sexuality.
On 29 September 2016, ENC18 lodged an application for review of the delegate’s decision with the Tribunal. On 7 December 2017, ENC18 attended a hearing before the Tribunal to give evidence and present arguments with the assistance of a Malay interpreter.
Tribunal decision
On 20 August 2018, the Tribunal affirmed the delegate’s decision not to grant ENC18 the visa. The Tribunal made the following findings:
(a)ENC18 was a lesbian: at [38];
(b)ENC18 had experienced some criticism and pressure from her friends in Malaysia and members of the public, as a Muslim lesbian: at [39];
(c)ENC18 had faced harassment and groping before and after certain others knew of her sexuality (although the Tribunal noted that little evidence was provided with respect to these claims): at [45];
(d)these experiences, individually or cumulatively (including through psychological impact), did not involve either serious harm amounting to persecution or significant harm: at [39], [45];
(e)ENC18 had a private nature which arises out of her personal choices and does not arise out of any fear of harm: at [41];
(f)ENC18’s private nature has led her to exercise discretion in Malaysia and Australia to be a more private individual: at [41];
(g)ENC18 might have been open about her sexual identity in Malaysia had she chosen to do so without facing a real chance or a real risk of harm: at [41]
(h)it may be difficult for ENC18 to identify her sexual orientation to family and friends in Malaysia but this did not constitute serious or significant harm: at [43];
(i)there was no potential harm to ENC18 as a result of the attitude and status of her partner’s family (noting the generality and vagueness of this claim): at [42]; and
(j)there was no evidence of ENC18 being questioned or dealt with by secular or religious authorities: at [44].
The Tribunal ultimately concluded that ENC18 was somewhat apprehensive about the future treatment of lesbians and LGBTI people in Malaysia but had not experienced, and did not have an immediate fear of, persecution or significant harm in Malaysia: at [47].
Turning to consider whether ENC18 was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) (‘Act’) — that is, as a result of there being a real chance of her experiencing serious harm amounting to persecution upon return to Malaysia by reason of being a member of a particular social group — the Tribunal had regard to other relevant factors including country information about the treatment of lesbians and other LGBT individuals in Malaysia: at [48]-[52].
The Tribunal noted that the recent 2018 Department of Foreign Affairs and Trade (‘DFAT’) country information report about Malaysia (‘country information’) assessed that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia and that the level and frequency of discrimination differs depending on factors such as socio-economic status and religion: at [52].
Having regard to the particular circumstances of ENC18, as well as the country information, the Tribunal was not satisfied that the social environment and attitudes towards lesbians in Malaysia would result in serious harm to ENC18, and was not satisfied that ENC18 faced a real risk of discrimination (including social or employment), psychological, physical or other harm that involved serious harm amounting to persecution: see [53]-[54].
With particular regard to ENC18’s past conduct in Malaysia, the Tribunal was also not satisfied that ENC18 had to, or would have to, modify her conduct or appearance or otherwise take measures to avoid persecutory harm: at [54].
Accordingly, the Tribunal concluded that ENC18 did not satisfy s 36(2)(a) of the Act: at [56].
Having regard to its anterior findings, and noting the psychological and long-term impacts of social discrimination, the Tribunal then considered whether ENC18 was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act — that is, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of ENC18 being removed from Australia to Malaysia, there was a real risk that ENC18 would suffer significant harm: at [57]-[58].
The Tribunal was not satisfied that ENC18 would face significant harm if she returned to Malaysia: at [58]. Accordingly, the Tribunal concluded that ENC18 did not satisfy s 36(2)(aa) of the Act.
Proceedings in the FCC
On 31 August 2018, ENC18 filed an application for judicial review of the Tribunal’s decision. On 29 June 2020, ENC18 filed an amended application advancing the following sole ground of review:
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.’
The matter proceeded to hearing on 15 July 2020 and, as I have already stated, reasons for decision were delivered on 21 August 2020. The primary judge held that there was no jurisdictional error in the Tribunal’s decision.
The primary judge observed that the Tribunal set out at some length the evidence and claims of ENC18, which the primary judge considered to be “reasonably comprehensive” of ENC18’s evidence, including that revealed by the transcript of the Tribunal hearing: at [16].
Contrary to ENC18’s submission, the primary judge did not accept that, by not referring to ENC18’s response to a question from the Tribunal at the hearing as to whether she was a quiet person, the Tribunal failed to have regard to it: at [17]. In circumstances where the broader claim was considered and ENC18’s evidence was “comprehensively summarised” the primary judge held that the Tribunal understood and considered ENC18’s evidence: at [17], [20].
The primary judge held that, on the evidence before the Tribunal, it was open to the Tribunal and not illogical, unreasonable or irrational to conclude that ENC18 had a private nature: at [20], [22].
Proceedings in the Federal Court
On 9 September 2020, ENC18 filed a notice of appeal in the Federal Court advancing the following ground, consistent with the error pressed before the primary judge:
The FCC (the Court) fell into error by failing to find that the Administrative Appeals Tribunal (the Tribunal) failed to have regard to important evidence in respect of the appellant’s claims for protection and/or acted unreasonably in finding that the appellant had a ‘private’ nature.
ENC18 contends that the Tribunal erred by finding simply that she would live discreetly in Malaysia because of her nature (ie her own choice) and that inherent in the notion deployed by the Tribunal, of having a private nature, is that ENC18 is “private” by choice or by default, independent of any fear of mistreatment.
ENC18 submits the Tribunal failed to directly confront the important point made by ENC18, namely that her past conduct, and her partner’s past conduct, was a result of their fears of harm. It is said that this point was made at the hearing before the Tribunal when in response to questions about whether she would live discreetly (as referred to above) ENC18 responded: “Yes but not to live openly. Everything will have to be done at home and in private, but we cannot do it in public”.
It is submitted that ENC18 was saying that she and her partner wanted to live an open life but could not do so in Malaysia owing to their fear of life getting worse, especially if the religious police were to notice them.
ENC18 particularly attacks the reasoning of the Tribunal set out at [41] of its decision, wherein the Tribunal held 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.
In my view this attack is not justified. In making the findings at [41], the Tribunal was not only concerned with ENC18’s nature, but on the basis of the evidence was persuaded that ENC18 simply did not have the relevant fear of persecution or significant harm. The Tribunal’s finding must be understood in that context. That is, after having regard to all the evidence before it, the Tribunal did not consider there to be sufficient evidence to establish the relevant fear; it then found the manner in which ENC18 conducted her life in Malaysia (as she has done in Australia) was not a result of fear of harm.
It is important to consider all the evidence before the Tribunal and its reasons.
The FCC undertook this task as follows:
[16]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.
[17] 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.
[18]There are then the other findings or observations made by the Tribunal in relation to this matter. These include the following:
[…]
(d)some Army officials only found out about her sexuality ‘through her friends’;
(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;
(g)ENC18 not providing any evidence of being questioned or dealt with by secular or religious authorities; 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.
[19]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.
[20]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.
[…]
[22]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.
In my view, the analysis taken by the FCC was correct and the Tribunal had enough probative evidence to find as it did that ENC18 did not have the relevant fear of serious harm amounting to persecution.
END18
Background
As I have indicated, END18, a citizen of Malaysia, arrived in Australia on 22 January 2016. On 8 April 2016, END18 applied for the visa on the basis that she fears she will be mistreated due to her sexuality and will be unable to obtain financial support (including running her own business) if she returns to Malaysia.
It is to be noted that END18, in responding to a question on the visa form as to what she thought would happen to her if she returned to Malaysia, stated “[t]here will be constraint of circumstances from surroundings that will effect [sic] my personal life”. Then in response to the question “Why did you leave that country?” END18 responded “Because of pressure received from surroundings after they learned about my sexuality preference…Recently we confessed to our families about our relationship but the responses they gave were perturbing. We were ridiculed and disgust [sic], being warned and often reminded of the sins we are committing”.
On 28 September 2016, the delegate refused to grant the visa. The delegate found that END18 had provided minimal detail and evidence to support her claims (including in relation to the harm she has in fact experienced in Malaysia and details of a claimed association between her family and the authorities) and that her claims were vague and contradictory.
On 29 September 2016, END18 lodged an application for review of the delegate’s decision with the Tribunal. On 7 December 2017, END18 attended a hearing before the Tribunal.
Tribunal decision
On 15 August 2018, the Tribunal affirmed the delegate’s decision not to grant END18 the visa. The Tribunal made the following findings:
(a)END18 identified as, and was, a lesbian person: at [38];
(b)END18 experienced some criticism and pressure from her family in Malaysia and members of the public, as a Muslim lesbian: at [39];
(c)there was no clear evidence about past or future threats to END18: at [27];
(d)END18 had never been in trouble with religious or government authorities despite living together with her partner in Malaysia: at [31];
(e)END18 and her partner had lived in a quiet fashion in Malaysia and continued to do so in Australia: at [29];
(f)the “quiet fashion” in which END18 and her partner lived as personality-driven behaviour and not caused by a fear of harm: at [29];
(g)there was no reason to conclude that END18’s position would change were she to return to Malaysia: at [29].
(h)END18 did not conceal her sexuality, or consider it necessary to change her appearance or her conduct: at [39]; and
(i)END18 came to Australia to work, and live, in a more open and accepting society: at [40].
The Tribunal harboured concerns that END18 had manufactured evidence about being frequently harassed by groups of men due to her sexuality: see [24]. The Tribunal noted that END18 had agreed that being a lesbian was tolerated in Malaysia, although this was qualified: it was tolerated only if it was not publicly displayed: at [26].
The Tribunal did not accept that the only reason the authorities did not bother END18 was because she had lived with her partner in a gated community and people needed to go through security: at [31]-[32]. The Tribunal also did not accept that END18 had to go out with relatives because she was a lesbian, instead finding (as accepted by END18) that this was common practice for Malay women generally: at [32].
The Tribunal ultimately concluded that END18 had not experienced, and did not have, an immediate fear of persecution or significant harm in Malaysia, however she was apprehensive about the future treatment of lesbians and LGBTI people in that country: at [41]. The Tribunal was not satisfied that END18’s experiences as a lesbian in Malaysia constituted serious harm amounting to persecution, or significant harm: see [39].
Turning to consider whether END18 was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act, the Tribunal had regard to country information and found that societal acceptance of LGBTI people in Malaysia had decreased: at [44]. However, looking at the particular circumstances of END18, the Tribunal was not satisfied of the following matters:
(a)that the societal environment and attitudes towards lesbians in Malaysia would result in serious harm for END18 personally: at [45]-[48];
(b)that END18 faced a real risk of discrimination (including social or employment), psychological, physical or other harm that involved serious harm amounting to persecution: at [48]; or
(c)that END18 needed, or would need, to modify her conduct or appearance or otherwise take measures in order to avoid persecutory harm: at [48].
Accordingly, the Tribunal concluded that it was not satisfied that END18 had a well-founded fear of persecution or that she met the criterion in s 36(2)(a) of the Act: at [50].
With regard to its anterior findings, and again noting the psychological and long-term impacts of social discrimination (at [52]), the Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of END18 being removed from Australia to Malaysia, there was a real risk that END18 would suffer significant harm such that she met the complementary protection criteria in s 36(2)(aa) of the Act: at [52]-[53]. Accordingly, the Tribunal affirmed the decision under review.
Proceedings in the FCC
On 31 August 2018, END18 filed an application for judicial review of the Tribunal’s decision. On 29 June 2020, END18 filed an amended application advancing the following grounds of review:
(1)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)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.’
The matter proceeded to hearing on 15 July 2020 and, as I have already stated, reasons for decision were delivered on 21 August 2020. The primary judge held that there was no jurisdictional error in the Tribunal’s decision.
In considering the first ground of review, the primary judge was not persuaded that the Tribunal failed to have regard to END18’s evidence that she could not go out openly in Malaysia: see [28]-[29]. In reaching this conclusion, the primary judge had regard to the Tribunal’s detailed consideration of END18’s evidence which the primary judge considered to provide a strong inference that the Tribunal considered END18’s evidence in relation to her ability to go out: at [30]. The primary judge also had regard to the transcript of the Tribunal hearing which recorded END18 stating that she seldom went out with her partner and, in response to a question about whether she had experienced any trouble with authorities, her remark “I seldom go out, I am afraid of this”: at [31].
The primary judge noted that END18 did not expressly say that she feared harm from going out or could not go out and found the statement that she was “afraid of this” was not connected to her ability to go out due to harassment or fear on account of her sexuality: at [32]-[33]. The primary judge otherwise held that the Tribunal’s finding that END18 “lived in a quiet fashion” and that “this was personality driven” was open to it on the material before it and not unreasonable, illogical or irrational: at [36].
In considering the second ground of review, the primary judge had regard to END18’s evidence before the Tribunal in support of the claim and found (at [43]) that the separate integer alleged was considered by the Tribunal as part of the claim advanced by END18 that she feared harm of persecution on the basis of being a lesbian or a Muslim lesbian.
Proceedings in the Federal Court
On 9 September 2020, END18 filed a notice of appeal in the Federal Court advancing the following grounds, consistent with the errors pressed before the primary judge:
1.The FCC (the Court) fell into error by failing to find that the Administrative Appeals Tribunal (the Tribunal) failed to have regard to important evidence in respect of the appellant’s claims for protection and/or acted unreasonably in finding that the appellant had a ‘private’ nature.
2.The Court fell into error by failing to find that the Tribunal had failed to have regard to an integer of the appellant’s claims arising from her fear of harm as a woman who ‘dressed like a man.’
As to ground 1, END18 (like ENC18) also claims to have lived discreetly in Malaysia, including because of her fears of the religious police.
END18’s submission relies on evidence which she submits was misconstrued and not dealt with by the Tribunal. That evidence includes the following exchange with END18 extracted from the transcript of the Tribunal hearing (some of which I have already referred to above):
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.
[…]
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.
It is submitted by END18 that — in the context of ENC18’s claims to the same Tribunal — END18 was here saying that she and her partner could not safely go out in Malaysia owing to their soundly based fear of harm, including at the hands of the religious police, if their relationship were openly displayed.
It is submitted that the Tribunal failed to consider this argument and wrongly found that END18 would live discreetly in Malaysia because of her own nature. END18 contends that the Tribunal’s conclusion about why END18 had lived discreetly in Malaysia could not be reached lawfully without expressly confronting the claims as to why they had lived discreetly in the past, namely the claims that they feared harm should they not be discreet.
Turing to the specific language used by END18 at the Tribunal hearing, it is submitted that the statement “I am afraid of this” (referring to the religious police), the affirmative answer to the question about being “hidden away”, and the statement about “seldom going out” sufficiently raise a claim such that it required express and direct attention by the Tribunal.
END18’s submission in relation to these matters is that she informed the Tribunal that she could not go out openly in Malaysia because of 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.
Like the primary judge, I am not persuaded that the Tribunal failed to consider this evidence as claimed by END18.
The Tribunal set out the evidence of END18 at some length at [13]-[37] of its reasons. From this detailed summary, I agree with the primary judge’s conclusion that there is sufficient basis for an inference that the Tribunal was well aware of and considered END18’s evidence in relation to her ability to go out and, more importantly, considered the reason for this behaviour.
The important point is that END18 did not say expressly that she feared harm from going out; the statement “I am afraid of this” in the transcript does not indicate what she was afraid of, or that she is afraid of going out (or seldom goes out) because of harassment or fear of harm on the basis of her sexuality at the hands of the religious police.
Then, when looking at this evidence in the context of the other material before the tribunal (including the country information), this confirms the view that there was no relevant fear of serious harm amounting to persecution.
The Tribunal did not fail to consider the evidence of END18 and the Tribunal did not misunderstand or misconstrue that evidence. It was open to the Tribunal to find on the evidence that END18 “lived in a quiet fashion” and that this was “personality driven”, and that was not caused by a fear of persecution. Such finding was not (contrary to END18’s submission) unreasonable, illogical or irrational.
In relation to the second ground of appeal, END18 submitted that she raised a claim before the Tribunal, which was recognised at [24] and [33] of its reasons, that in Malaysia she faced repercussions on the basis of her choice of dress (she “dressed as a man”).
END18 submitted this was a discrete claim, or an integer of her broader claim, which the Tribunal failed to evaluate. END18 submitted that her choice of dress and sexuality were separate matters and “could not be dealt with the same brush”.
However, 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. The Tribunal dealt with END18’s evidence about her dress in the same manner in which the evidence was advanced — in connection with her experience as a Muslim lesbian in Malaysia.
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 [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”. The Tribunal was satisfied that END18 had not concealed or changed her “appearance” or “conduct”’.
The Tribunal also recorded that END18 claimed to have experienced verbal violence because of “people demanding to know why she was not more like other women’” at [24]. Then, at [33], the Tribunal recorded 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 concern about END18’s dress, but I do not consider that there was raised any claim or integer of a claim by END18 in relation to dressing like a man that was separate from her overall claim to fear serious harm on the basis of her sexuality. Both her sexuality and being dressed like a man were part of the overall claim to fear persecution and serious harm as a member of a particular social group. It would be quite artificial to not treat them as the Tribunal did as relating to each other and part of the same claim.
DISPOSITION
For the above reasons, I would dismiss the appeals with costs.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Middleton. Associate:
Dated: 24 June 2021
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