ENR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1573
•16 September 2019
FEDERAL COURT OF AUSTRALIA
ENR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1573
Appeal from: ENR18 v Minister for Home Affairs & Anor [2019] FCCA 1059 File number: QUD 252 of 2019 Judge: RANGIAH J Date of judgment: 16 September 2019 Catchwords: MIGRATION – appeal against judgment of Federal Circuit Court – application for protection visa – appellant raises claims not made before Tribunal – no jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a) and (aa) Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Date of hearing: 16 September 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Appellant: The Appellant did not appear Solicitor for the First Respondent: Ms E Tattersall of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
QUD 252 of 2019 BETWEEN: ENR18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
16 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to the Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE AND REVISED)RANGIAH J:
The appellant appeals against a judgment of the Federal Circuit Court of Australia given on 3 April 2019, dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) that affirmed the decision of first respondent to refuse her the grant of a Protection (Class XA) Visa.
The appellant is a citizen of Malaysia who arrived in Australia in 2016. She applied for a Protection Visa on the basis that she faced violence at the hands of her husband, his family and friends because she was sterile and unable to have children. The delegate refused the application on 22 March 2017.
Before the Tribunal, the appellant claimed that she, in fact, faced violence from her husband and his friends because she had discovered that he was homosexual.
On 20 August 2018, the Tribunal made its decision. The Tribunal rejected the appellant’s claims, finding as follows:
41.In conjunction with the other inconsistencies identified above, the delay in her claim for protection and her stated desire to remain in Australia only temporarily, the Tribunal finds that the applicant lacks credibility as a witness. Following careful consideration, the Tribunal does not accept that the applicant has ever faced any harm, or that there is a real chance of serious or significant harm for her, in Malaysia for any reason (including from violence (physical or psychological) at the hands of her husband, any family member on either side of her family, any friends or from any person at all, including any of the Malaysian authorities). The Tribunal has formed the view that the applicant fabricated her claims for protection in order to remain in Australia. The Tribunal does not accept the veracity of the applicant’s claims for protection and finds accordingly.
…
42.Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm.
43.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The appellant then applied for review of the Tribunal’s decision to the Federal Circuit Court. The primary judge dismissed that application, holding, relevantly, as follows:
19. A consideration of the grounds of review reveals that the applicant has failed to establish any jurisdictional error on the part of the Tribunal. The grounds constitute submissions and invite the [Court] to engage in a merits review – something that it is not entitled to do. The Tribunal dealt with the applicant’s claims and evidence carefully. Adverse credibility findings made by the Tribunal were based on rational grounds and were open and logically probative.
20. The applicant has further failed to identify the way in which the Tribunal was asserted not to have applied or analysed the provisions of section 36(2)(aa) of the Act. The Tribunal dealt with the applicable law and it has otherwise not been demonstrated that the Tribunal erred in its analysis of either the law or the facts before it.
21. The applicant has also failed to demonstrate any procedural unfairness on the part of the Tribunal. The Tribunal conducted a fair hearing and gave the applicant every opportunity to put her case. It did so in accordance with the provisions of the Act. It observed its procedural fairness obligations.
22. The grounds are otherwise without particularity or alternatively are so wide as to be incapable of understanding.
23. It has not been demonstrated that the Tribunal failed to make an obvious inquiry about a critical fact.
24. It cannot be said that no other rational or logical decision-maker could not have made the same decision as the Tribunal…
25. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] …
26. The application is without merit. No jurisdictional error has been established on the part of the tribunal.
The appellant’s grounds of appeal in this Court are as follows:
•The Federal Circuit Court erred by failing to find that the Tribunal Member made a legal mistake on the issue of relocation that I have a right to enter and reside in Malaysia. It is contended that the Tribunal Member failed to properly and lawfully address the issue of relocation to Malaysia but it made a conclusion on this issue based on strong assumption rather than the facts and legal grounds, because of if I have threat from my husband and there is no help from Authorities , how it is possible for relocation.
•The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in making a conclusion that I have a legal right to enter and reside in Malaysia where I could live safely having regard to the material upon which it relied, that reliance being unreasonable, if I go I will be killed or I have to surrender to so called husband or some other person as house maid by leaving all human values. They treat me like House maid but not as a wife , there are no empowerment to women. I will be tortured as other women being tortured by Malaysians.
•The primary judge erred in making an order that the Tribunal made a jurisdictional error by determining the applicants' application for review as my claims and evidence have not been assessed against both s.36w.(ru and s.36(2)(aa) of the Act, it was unjust to me.
• The Primary Judge erred in law that the Tribunal made a Jurisdictional Error:
(i)by refusing or otherwise failing to find that the Tribunal was in jurisdictional error when it concluded that I can find authorities help and parents help back in Malaysia.
(ii)by Assessing case against the Country Report Malaysia of 19 April 2018 which doesn't have anything related to my case as Malaysian government is dominated by muslim fanatics, Islamic religion always the supress women, therefore Country report of Malaysia is not authentic it is name authentic.
(Errors in the original.)
The appellant has not filed any written submissions in support of her appeal. She has not appeared at the hearing of the appeal. I am satisfied that she has been notified of the date and time for the hearing.
In these circumstances, the grounds of appeal can be considered only on the basis of the terms in which they are expressed. The grounds stated in the notice of appeal were not argued before the primary judge. The appellant would require leave to raise those grounds in the appeal. I propose to proceed by considering the merits of the grounds.
The first proposed ground of appeal appears to assert that the Tribunal should have found that it is not possible for the appellant to safely relocate from Australia to Malaysia because she faces threats from her husband, and cannot obtain help from the authorities. The Tribunal found that the appellant’s evidence that she faced harm from her husband, his family and friends was fabricated. It found that she faced no such threat. These were findings available to the Tribunal upon the evidence before it and its observations of the appellant’s demeanour when giving evidence. The first ground of appeal does not assert or demonstrate any jurisdictional error in the Tribunal’s finding. That ground cannot succeed.
The appellant’s second proposed ground appears to assert that in Malaysia the appellant would be stripped of her “human values” as a wife and would be tortured. This ground raises claims that were not made before the Tribunal. There can be no jurisdictional error in the Tribunal failing to consider claims that were never made or which did not clearly arise from the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60]. This ground cannot succeed.
The appellant’s proposed third ground is difficult to understand. It may assert that the primary judge erred by failing to hold that the Tribunal had not assessed the appellant’s claims against ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth). However, it is clear from paragraph [43] of the Tribunal’s decision record that it did just that. The third ground cannot succeed.
The first part of the appellant’s fourth proposed ground challenges a finding she says was made by the Tribunal that she could find help from the authorities and her parents in Malaysia. However, the Tribunal made no such finding. It was unnecessary for the Tribunal to consider such issues because it found that she had fabricated her evidence that she had been harmed and threatened by her husband.
The second part of the fourth proposed ground asserts that the Tribunal had regard to country information that the appellant asserts was incorrect or inaccurate. The weight to be given to the country information was for the Tribunal to decide. In any event, the country information did not ultimately bear upon the Tribunal’s decision, because it found that she had fabricated her evidence. The fourth ground cannot succeed.
The appellant’s appeal must be dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 23 September 2019
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