FDX19 and Ors v Minister for Immigration and Anor (No.2)

[2020] FCCA 2632

FEDERAL CIRCUIT COURT OF AUSTRALIA

FDX19 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 2632

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal did not did not give proper and genuine consideration relevant considerations – whether the Tribunal misapplied the relevant law – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 438, 476

First Applicant: FDX19

Second Applicant: FER19

Third Applicant: FES19

Fourth Applicant: FET19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3404 of 2019

Judgment of: Judge Street

Hearing date: 10 September 2020

Date of Last Submission: 10 September 2020

Delivered at: Sydney

Delivered on: 22 September 2020

REPRESENTATION

Counsel for the Applicants: Mr B Zipser via Microsoft Teams

Solicitors for the Applicants: ALP Lawyers

Counsel for the First Respondent: Mr T Reilly via Microsoft Teams

Solicitors for the First Respondent: MinterEllison

ORDERS

1. The amended application in respect of the decision concerning the second applicant is dismissed.

2. The second applicant pay the first respondent’s costs as a joint liability with the first, third and fourth applicants in the same amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3404 of 2019

FDX19

First Applicant

FER19

Second Applicant

FES19

Third Applicant

FET19

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The proceedings were commenced by originating application seeking Constitutional writs within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of two decisions of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 December 2019 concerning the same family from Indonesia and by the same decision-maker of the Tribunal affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Protection (Class XA) visas. These reasons concern the claim for a writ by the second applicant.

2. The first decision concerned the first applicant (husband of the second applicant) and the third and fourth applicants being the adult son and adult daughter of the first applicant. The second decision concerned the second applicant (wife of the first applicant) and being the mother of the third and fourth applicants. An integer of the second applicant’s claims and findings concerning the same are the underlying reasons why the Court made an order by consent for application for writs in respect of the two decisions dated 6 December 2019 would be heard concurrently and determined separately as if each decision was the subject of a separate originating process.

3. The applicants were found to be citizens of Indonesia and their claims were assessed against that country.

4. The second applicant first arrived in Australia on 28 January 2002 and departed on 11 August 2006. The second applicant then arrived in Australia, again, on 26 April 2007 and departed on 9 December 2007. The second applicant then returned to Australia on 2 June 2008 and departed on 11 June 2009 and then returned to Australia on 11 June 2009.

5. The applicants first applied for protection visas on 12 March 2002. That application was refused by a delegate of the first respondent on 24 April 2002. The Tribunal affirmed the decision not to grant the applicants, including the two children as dependants, protection visas on 30 May 2003.

6. The applicants remained unlawfully in Australia until they were located, detained and deported back to Indonesia in August 2006. The first, second and fourth applicants then re-entered Australia in 2007 on student visas that were granted to them under false identities. The third respondent returned to Australia in 2008 with a false identity and returned to Indonesia five times until the last return to Australia in 2012. The first and second applicants studied and worked in Australia using their false identities until the lodging of the current Protection visa application on 12 November 2014.

7. The second applicant claims to fear harm, in summary, because she was mistreated by people because of her religion and the authorities were against her Islam Jama’ah (“IJ”), she is an active preacher and spiritual advisor to other members of her mosque, there would be no religious freedom and fears that what had happened to her in the past will happen to her again in Indonesia.

8. The Delegate found that the first applicant was not a witness of truth and did not meet the criteria for the grant of a Protection visa. The second, third and fourth applicants were at that stage included as members of the family unit. Accordingly, the Delegate refused to grant the applicants Protection visas.

9. On 16 February 2016, the applicants applied to the Tribunal for review. By email dated 24 April 2018 the Tribunal invited the applicants to attend a hearing on 9 July 2018 and a further email was sent by the Tribunal to the applicants inviting written submission setting out all claims made by 2 July 2018. The first, second and third applicants attended the hearing on that date to give evidence and present arguments, as well as their migration representatives and two other persons who gave evidence as witnesses. The applicants requested in the response to hearing invitation dated 2 May 2018 that the evidence of the second respondent be given separately due to the sensitive nature of the evidence. The first applicant provided submissions by email dated 2 July 2018 in support of the claims of the first applicant and the second applicant provided separate submissions by email dated 2 July 2018 in support of the claims of the second applicant. The fourth applicant did not attend the hearing. By letter dated 10 July 2018 the Tribunal invited the applicants to attend a resumption of the adjourned hearing on 14 August 2018. All four applicants attended the resumed hearing on that date to give evidence and present arguments, as well as their migration representative.

10. The Tribunal delivered two separate decisions, the second dealing with the application of the second applicant which as indicated are the subject of these reasons.

11. In the separate decision concerning the second applicant, the Tribunal again identified the background for the Protection visa application and the applicants’ migration history. The Tribunal identified the relevant law.

12. The Tribunal identified the existence of a s 438 of the Act certificate, which the Tribunal treated as being invalid. The Tribunal found that the certificate was disclosed to the applicants and it is apparent that he applicants suffered no practical injustice in the conduct of the review by reason of the existence of the certificate or the information the subject of the certificate.

13. The Tribunal identified the second applicant’s claim to fear harm because of her religion. The Tribunal identified the second applicant’s claim that she was attacked in November 1996 and raped and that the attackers threatened if the applicants’ are still involved with the Lembaga Dakwah Islam Indonesia (“LDII”) they will come and kill the family. The second applicant alleged that she had not told her husband about the incident. The Tribunal also identified the second applicant’s claim that she was chased by a few people on a motorcycle. The Tribunal also identified that the second applicant maintained that she did not feel safe when they returned to Indonesia in 2006 and that, when she returned to Australia with the fourth applicant in 2007, she only returned to Indonesia for urgent reasons.

14. The Tribunal wrote to the applicants by email dated 10 July 2018 pursuant to s 424A of the Act in relation to the family earlier giving false or misleading information and changing their names to re-enter Australia, as well as the migration movement records for the third applicant, movement records for the fourth applicant, claims not raised by the third applicant and country information concerning IJ and LDII being a new name for IJ. The Tribunal identified the applicants’ response and the documents that were submitted.

15. The Tribunal also identified that there had been updated country information, as a result of which the Tribunal wrote to the applicants and identified taking into account the response provided by the applicants in that regard.

16. The Tribunal referred to independent country information. The Tribunal summarised what had occurred in relation to IJ, that it was banned by the Indonesian Attorney-General’s department in October 1971, that in 2008 the ban was confirmed as having been lifted and that the Lembaga Dakwah Islam Indonesia (“LDII”) was registered by the Department of the Interior of the Republic of Indonesia as one of the Islamic organisations in Indonesia.

17. The Tribunal referred to country information in relation to the change of name of IJ to LDII.

18. The Tribunal referred to country information that LDII is seen by conservative Muslims as deviant.

19. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (“DFAT) country information report saying that DFAT does not have any information on the group called IJ.

20. The Tribunal identified that it was willing to accept that the second applicant is a follower of IJ. The Tribunal found that, on the evidence, the second applicant attended LDII mosques in Indonesia and that she has have continued to practise her faith in Australia.

21. The Tribunal also accepted that the first and second applicants were assaulted in 1996 as claimed. The Tribunal was not satisfied that the second applicant has experienced serious harm or significant harm in Indonesia for reasons of her religion or for any other reason since returning to Indonesia in 2006.

22. The Tribunal identified having serious credibility concerns in relation to the second applicant’s evidence as to her claims to be at risk of religious persecution and found that they were not supported by independent country information.

23. The Tribunal found that the followers of IJ are free to practise their faith under the umbrella of LDII and summarised the country information in that regard.

24. The Tribunal did not accept that after the second applicant and her family members returned to Indonesia in 2006 they were unable to attend their mosque of choice, participating in prayers, religious gatherings or any other religious activities.

25. The Tribunal referred to the second applicants’ significant claim of being a victim of a sexual assault in 1996. The Tribunal did not accept that there is a real chance that the applicant would be the subject of serious harm, including in the form of sexual assault from male perpetrators, if she were to return to Indonesia now or in the reasonably foreseeable future.

26. The Tribunal found that if the second applicant were to return to Indonesia now she would do so in company of her husband, the first applicant. The Tribunal took into account country information in relation to the situation of women and expressly referred in a footnote to statistics revealing that a third of Indonesian women have experienced either physical, sexual or emotional or economic violence in their lifetime.

27. The Tribunal was not satisfied that there is a real chance the second applicant would face serious harm in the form of a further sexual assault and now or in the reasonably foreseeable future from those individuals who assaulted her in 1996. Nor, on the evidence before it, was the Tribunal satisfied that there is a real chance that the second applicant would be subject to sexual violence by other male predators.

28. The Tribunal considered the second applicant’s assertions that she will be subject to a further sexual assault if she returned to Indonesia to be speculative and remote. The Tribunal was not satisfied that there is a real chance (rather than one that is remote and farfetched) that the second applicant will face such harm.

29. The Tribunal referred to taking into account country information in relation to the prevalence of gender-based violence as well as the particular circumstances of the applicant in reaching this conclusion. The Tribunal took into account that since the assault in 1996, the assailants have not made subsequent threats against the second applicant or her family. The Tribunal referred to the second applicant living in Indonesia between 1996 and 2002 and that she had not sought asylum when she and her family went to the United States. The Tribunal took into account that the second applicant voluntarily returned to Indonesia from Australia in December 2007. The Tribunal found that the second applicant’s immigration history undermined her claims that she believes she will be at risk of being assaulted again if she returns to Indonesia now or in the reasonably foreseeable future.

30. The Tribunal referred to the second applicant’s claims that if it becomes known she was the victim of a sexual assault she will face social stigma and be bullied. The Tribunal also acknowledged the second applicant’s concern that she may be identified as a victim of sexual assault. The Tribunal found that it did not appear that those fears had eventuated, as there was no evidence that the fact that she was sexually assaulted is currently known either to her immediate family or within her religious community in Indonesia. The Tribunal found that the fact that the second applicant was sexually assaulted in 1996 is not known to her family, nor members of her religious community, or more broadly in Indonesia. The Tribunal found that there is no real chance that this situation will change in the reasonably foreseeable future.

31. The Tribunal took into account the passage of time since the assault, the fact that the second applicant made a living in Indonesia for significant periods of time after the assault occurred and that she had chosen not to disclose her assault to immediate family or anyone else in finding that there is no real chance that the fact that the second applicant has been a victim of sexual assault will become known.

32. The Tribunal accepted that the second applicant did not disclose the sexual assault to her husband and children, being the first, third and fourth applicants. The Tribunal found that there is no real chance the applicant will be identified as a victim of sexual assault and, therefore, did not accept that she will be subject to social stigma or discrimination on that basis. As the Tribunal did not accept that the fact the second applicant was sexually assaulted in the past is known to her family or members of her community in Indonesia, the Tribunal did not accept the second applicant’s claims that she will be bullied, subject to societal stigma or discrimination or otherwise harmed for this reason.

33. The Tribunal referred to the situation for IJ and LDII followers. The Tribunal referred to the situation for IJ and LDII followers in Indonesia. The Tribunal referred to country information that the situation for followers of IJ and LDII has improved significantly since the 1990s. The Tribunal also took into account that the ban on LDII was lifted in 2008 and that there are LDII websites and mosques operating in Indonesia.

34. The Tribunal referred to the applicants’ explanation that there was a distinction between IJ and members of LDII. The Tribunal, however, found that IJ had changed its name to LDII and found that IJ is now commonly known as LDII based on the country information.

35. The Tribunal referred to the evidence indicating that the second applicant and her family attended and LDII mosques in Indonesia and an Association of Islamic Dawah (“AIDA”) mosque in Australia.

36. The Tribunal was not satisfied that the second applicant has a religious profile that is of any adverse interest to the Indonesian authorities. The Tribunal found on the country information that the second applicant would be free to practise her religion in an LDII mosque and that there is no real chance that she will face serious harm or significant harm because of her religious beliefs and practices.

37. The Tribunal expressly referred to the oral evidence of the two witnesses, including that of the witness who is recognised as a refugee because of her religious beliefs. The Tribunal referred to the evidence given by that witness in relation to contending that IJ followers are restricted in practising their religion and also the evidence of the other witness. The Tribunal took into account that the witnesses are long-time friends and associates of the applicants who wish to assist them in their efforts to remain in Australia. The Tribunal found that the witnesses were not disinterested parties to the review and that their assessment of the risks facing IJ followers in Indonesia was not, in the Tribunal's opinion, supported by independent country information.

38. The Tribunal found that AIDA is not of any adverse interest to the Indonesian authorities and rejected the implied claim that the second applicant would be at risk because of her religious practices or associations in Australia.

39. To the extent that the witnesses testimony sought to support the second applicant's claims, the Tribunal gave it limited weight and found that it did not satisfy the Tribunal that there is a real chance that the second applicant will face serious harm or significant harm because of her religious profile or for any other reason if she returns to Indonesia now or in the reasonably foreseeable future.

40. The Tribunal took into account that the second applicant had not claimed that there is a real chance she will face serious harm or significant harm because of any religious activities she is engaged in in Australia.

41. The Tribunal was not satisfied that any financial difficulties or hardship or emotional distress the second applicant may encounter if she returns to Indonesia now or in the reasonably foreseeable future amounts to serious harm for the purpose of the 1951 Refugee Convention criteria or significant harm for the purpose of the complementary protection criteria.

42. The Tribunal was not satisfied that there is a real chance that the second applicant will face serious harm or significant harm for reasons related to her religious beliefs and practices or as a woman and/or as a past victim of sexual assault if she returns to Indonesia now or in the reasonably foreseeable future.

43. The Tribunal found that any societal discrimination the second applicant may encounter will not amount to serious harm for the purposes of the 1951 Refugee Convention criteria or significant harm for the purpose of the complementary protection criteria.

44. The Tribunal found that the second applicant, if she returns to Indonesia, will do so in the company of her family and was not satisfied there is a real chance the second applicant will face serious harm or significant harm because of her religion or as a woman or as a woman who has been the victim of a sexual assault or some combination of these factors now or in the reasonably foreseeable future.

45. The Tribunal was not satisfied that there is a real chance that the fact that the second applicant was a victim of sexual assault in the past will become known if she returns to Indonesia.

46. The Tribunal found that the second applicant does not have a well-founded fear of persecution. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant being removed from Australia to Indonesia, there is a real risk she will suffer significant harm. The Tribunal found that the second applicant failed to meet the criteria under ss 36(2)(a) and 36(2)(aa) of the Act.

1. Accordingly, the Tribunal affirmed the decision under review in respect of the second applicant.

Grounds in the amended application

1. The grounds of the amended application are as follows:

   1. Deleted

   2. Deleted

   3. The Administrative Appeals Tribunal ("the Tribunal") was required to consider whether the applicants, if required to return to Indonesia, faced a real chance of serious harm into the reasonably foreseeable future. A question for the Tribunal in considering the reasonably foreseeable future was whether the religious tolerance the Indonesian government had shown to LDII since 2008 might diminish. The Tribunal failed to address this question in considering the reasonably foreseeable future. This was a jurisdictional error.

   4. On 9 July 2018 there was a hearing before the Tribunal. … gave evidence, including that in 2011 she obtained a protection visa in Australia based on being an Islam Jamaah practitioner. The Tribunal did not address the relevance or significance of this part of … evidence to an assessment of whether the applicants were entitled to protection visas. The Tribunal failed to give proper and genuine consideration to this part of … evidence in a manner which involved jurisdictional error.

   5. A question for the Tribunal was whether the applicant mother, who was the victim of a sexual assault in 1996, faced a real chance of further sexual assault if required to return to Indonesia. Paragraph 3.97 of a DFAT report before the Tribunal stated in part that "over 33 per cent of women aged 15 to 64 years had experienced physical or sexual violence in their lifetime". Yet the Tribunal found at [56] that there is not “a real chance that the applicant [mother] will be subject to serious harm”. The Tribunal failed to reconcile the information in the report (stating that women aged between 15 and 64 face a high chance of physical or sexual violence) with its conclusion that the applicant mother does not face a real chance of sexual violence. This permits the Court to conclude that the Tribunal did not give proper and genuine consideration to the information in the report in a manner which involved jurisdictional error.

Ground 3

1. In relation to ground 3, Mr Zipser of counsel on behalf of the applicants contended that there was a basis for the Tribunal to consider whether government support for the LDII after 2008 might diminish. There is no country information to support that contention. It is not a claim that was raised or that was reasonably apparent on the material before the Tribunal. The Tribunal did not have to make findings on a claim that was not raised and that did not fairly arise on the materials before the Tribunal. This ground, in substance, is an invitation to the Court to engage in impermissible merits review. The Tribunal correctly identified the country information and it was a matter for the Tribunal as to what weight to give the country information. The Tribunal correctly identified the relevant law. The Tribunal’s reasons, as summarised above, reflect the correct application of the test in relation to the reasonably foreseeable future. This is supported by the Tribunal’s reference to the correct test in paragraphs 57, 68, 71, 72, the reference to “looking forward” in 75, 76, 77 and 78 of the Tribunal’s reasons. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, the proposition that the Tribunal failed to give proper and genuine consideration to the evidence of the refugee witness is without substance. It is apparent that the refugee witness’s evidence was correctly identified by the Tribunal and that the Tribunal identified logical rational reasons for giving that evidence little weight, including the lack of independence and the long-standing friendship with the applicants, and preferring country information. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, this was only advanced in respect of the second applicant. In relation to the second applicant, it is alleged that the Tribunal was required to reconcile country information in relation to over 33 per cent of women experiencing physical or sexual violence in their lifetime and that the Tribunal had failed to give proper and genuine consideration to the country information. This, in substance, is an invitation to engage in merits review. The Tribunal’s reasons expressly refer to the country information identified in a footnote and the Tribunal provided logical and rational reasons as to why the second applicant did not meet the criteria under the 1951 Refugee Convention or in relation to complimentary protection. There is no failure to give a proper and genuine consideration to the country information before the Tribunal. The Tribunal’s reasons reflect a genuine intellectual engagement with the second applicant’s claims in evidence. The adverse finding in relation to the second applicant was open for the reasons given by the Tribunal. No jurisdictional error as alleged in ground 5 is made out.

2. As the application fails to make out any jurisdictional error in relation to the second decision of the Tribunal in respect of the second applicant, and as no jurisdictional error has been made out in relation to the first decision, the amended application is dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 22 September 2020