FLZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 75

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

FLZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 75

File number(s):	SYG 3881 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	24 September 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Protection (Subclass 866) Visa – where the Tribunal had made adverse credibility findings – whether the Tribunal failed to assess the applicant’s claims against the refugee criteria and the complementary protection criteria – whether the Tribunal had a duty to investigate the applicant’s claims – where the applicant’s submissions invited impermissible merits review – no jurisdictional error – application dismissed.
Legislation:	Migration Act 1958 (Cth) div 4; pt 7; ss 5AAA, 36(2)(a), 36(2)(aa), 423A, 425, 425A, 476
Division:	Division 2 General Federal Law
Number of paragraphs:	50
Date of hearing:	26 July 2021
Place:	Sydney
Solicitor for the applicant:	In person
Solicitor for the respondent:	Ms K Evans, Sparke Helmore

ORDERS

SYG 3881 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FLZ17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	24 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The application is dismissed. 

2.The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET:

INTRODUCTION

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of an Administrative Appeals Tribunal (“the Tribunal”) decision made on 21 November 2017, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Protection (Subclass 866) Visa (“the Protection Visa”).

   BACKGOUND

2. The applicant is a citizen of Malaysia, and her claims were assessed against that country.

3. The applicant claimed to fear harm by reason of an abusive relationship with her husband.

4. On 13 August 2016, the applicant arrived in Australia on an Electronic Travel Authority Visa (“the ETA Visa”). On 24 October 2016, the applicant applied for the Protection Visa.

5. On 22 March 2017, the delegate found that the applicant failed to meet the criteria for the grant of the Protection Visa.

   BEFORE THE TRIBUNAL

6. On 24 March 2017, the applicant applied for review.

7. By a letter dated 26 October 2017, the applicant was invited to attend a Tribunal hearing on 15 November 2017. The letter identified that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone.

8. On 15 November 2017, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal identified the background to the application for review and summarised the information provided by the applicant in relation to her claims. The Tribunal identified the applicant’s contentions that the police could not help her, that she tried to move to avoid harm but her husband still tracked her down, and that if she returned to Malaysia he would kill her.

9. The applicant identified that she left Malaysia legally. The Tribunal summarised the applicant’s background and referred to country information in relation to women seeking to escape violent husbands.

10. The Tribunal put to the applicant its credibility concerns in relation to the applicant’s evidence.  The applicant indicated that she would like to submit proof of her marriage in relation to a photograph of her husband and herself. Evidence was adduced in respect of that photograph, to which the Tribunal expressly referred, and the Tribunal accepted that the applicant was married and remains in a relationship with her husband.

11. The Tribunal identified having credibility concerns about inconsistencies in the details of the applicant’s claims, as well as her changing evidence.

12. The Tribunal referred first to concern about the applicant’s evidence as to why she decided to come to Australia. The Tribunal referred to the applicant telling the Tribunal that her husband had been arrested, and that he had found out that she was the one who had reported him for stealing a motorbike, and so she pawned a necklace to obtain the ETA Visa and travel to Australia.

13. The Tribunal identified that, according to the movement records, her ETA Visa had been granted four days before the applicant’s husband was allegedly arrested. The Tribunal identified that this undermined her claim. The Tribunal did not accept the applicant’s explanation in relation to the inconsistency.

14. The Tribunal also referred to the applicant’s evidence about why she fears harm from the husband. The Tribunal identified the applicant having omitted from her Protection Visa application form the claim about her reporting the husband to the police for stealing a motorbike. The Tribunal referred to the applicant’s explanation about a friend, and was not satisfied that the applicant has a reasonable explanation as to why that claim to fear harm was not raised before the primary decision-maker. Consequently, the Tribunal drew an adverse inference about the new claim.

15. The Tribunal identified that, even if it had not drawn such an adverse inference by reason of operation of s 423A of the Act, it would have drawn an adverse inference because of the applicant’s inconsistent evidence about the claim.

16. The Tribunal also expressed credibility concern as to the implausibility of the applicant’s claim, in relation to threatening and reporting the husband to the police for stealing a motorbike and as to why if she was a vulnerable person she would report her husband to the police if she could not obtain protection as she claimed from the police.

17. The Tribunal also referred to a number of inconsistencies between the Protection Visa application form and the applicant’s evidence at the hearing, which the Tribunal found undermined the applicant’s credibility and her claims. The Tribunal referred to the Protection Visa application form, indicating that the applicant had not experienced harm in her county, which was inconsistent with the evidence that she gave to the Tribunal.

18. The Tribunal also referred to the applicant’s Protection Visa application form, in which she stated that her husband was able to track her down. The Tribunal noted that this was different to the applicant’s evidence at the hearing, where the applicant stated that she did not seek refuge at her parent’s house to escape the abuse because she did not want to bother them.

19. The Tribunal also found that the applicant gave inconsistent evidence as to why she did not approach her family, and did not accept that the applicant can explain the inconsistencies. The Tribunal referred to the Protection Visa application form, in which the applicant alleged that the husband would kill her because she came here without his knowledge, whereas the applicant changed that evidence before the Tribunal into the proposition that he would injure her. The applicant sought to explain the difference by reason of having told her friend, which the Tribunal found unpersuasive.

20. The Tribunal also referred to the applicant being asked by the Tribunal if she had been contacted by the police, to which she responded no. The Tribunal referred to the applicant’s explanation about her friend telling her that the police would not take it seriously, and referred to the applicant saying that she wanted to go to the police but could not do so.

21. The Tribunal did not find the applicant’s explanation persuasive. The Tribunal also did not accept that the inconsistencies could be explained by the applicant’s reference to a friend having filed her application.

22. The Tribunal referred to the applicant’s claims about having a friend who was a police officer, and raised the implausibility of the advice the applicant alleged she was given. The Tribunal referred to country information in that regard.

23. The Tribunal identified concern in relation to the applicant’s changing evidence about the abuse. The Tribunal found the applicant not to be a credible witness. The Tribunal found that the applicant is not a witness of truth, and found that the applicant had fabricated accounts of events and claimed fears, upon which she based her Protection Visa application.

24. Whilst accepting that the applicant was married, the Tribunal was not prepared to accept the balance of the applicant’s claims in relation to the type of relationship she had with her husband. The Tribunal was not prepared to accept that the applicant suffered as described in her written claims or in her oral evidence, and was not satisfied that the claims she had made were true. The Tribunal did not accept that the applicant experienced any threats or harm from anyone in Malaysia. 

25. The Tribunal did not accept that the applicant had been subject to domestic violence in Malaysia. The Tribunal did not accept any of the applicant’s allegations flowing from these claims, including that she had spoken to a particular police officer about protection. The Tribunal did not accept that the applicant reported her husband to the police for stealing a motorcycle, and did not accept that the husband spent time in prison for this, or that she had any difficulties with her husband. 

26. The Tribunal did not accept that the applicant had a need to escape from Malaysia, or that she feared or fears returning to Malaysia. The Tribunal did not accept that anyone was seeking to harm the applicant. The Tribunal did not accept the applicant’s claims that her husband had sought to harm her in the past. The Tribunal was not satisfied that there is a real risk that the applicant would be subject to domestic violence from her husband in Malaysia.

27. The Tribunal referred to the applicant’s changing evidence. The Tribunal did not accept that the applicant has faced any threats or harms in Malaysia, or that anyone has an adverse interest in her since she has been in Australia.

28. The Tribunal was not satisfied that the applicant faces a real chance or real risk of requiring access to Australian protection. The Tribunal referred to having considered the claims individually and cumulatively, and was not satisfied that there is any reason for considering that the applicant faces a real chance of serious harm. The Tribunal found that the applicant did not meet the criteria under s 36(2)(a) of the Act.

29. The Tribunal then turned to the issue of complementary protection. The Tribunal referred to the findings that it was not satisfied that the applicant has been truthful in relation to a majority of her claims. The Tribunal referred to not having accepted that the applicant has experienced any past harm. 

30. The Tribunal was not satisfied that the applicant would face a real risk of adverse attention amounting to significant harm from anyone for any reason, including generally as a married woman. The Tribunal was not satisfied that there are substantial grounds for believing the submission that, as a foreseeable consequence of the applicant being returned to Malaysia, there is a real risk the applicant will suffer significant harm. The Tribunal found that the applicant did not meet the criteria in s 36(2)(aa) of the Act. The Tribunal affirmed the decision of the delegate under review. 

    BEFORE THE COURT

31. These proceedings were commenced on 14 December 2017.

32. On 25 January 2018, a Registrar of this Court made orders, giving the applicant an opportunity to put on an amended application, affidavit evidence, and submissions. No such documents have been filed.

33. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant then confirmed she understood the explanation given by the Court.

34. The applicant submitted that the Tribunal had erred in finding that she was not married. The Tribunal did not make a finding that the applicant was not married; the Tribunal made reference to the further documents produced by the applicant, gave the applicant the benefit of the doubt, and accepted that she was married. The applicant disagreed with the adverse credibility findings. The Tribunal made adverse credibility findings in relation to the applicant’s claimed fear of harm from her husband and found she was not a witness of truth. The adverse credibility findings were logical and rational, for the reasons given by the Tribunal, as summarised above. 

35. The inconsistencies in the applicant’s evidence, which the Court has summarised, identified in paragraphs 18 to 26 of the Tribunal’s reasons, were not trivial or insignificant matters. Accordingly, the adverse credibility findings were open for the reasons given by the Tribunal.  Nothing said by the applicant identified any jurisdictional error. 

    THE GROUNDS

36. The grounds in the application are as follows:

    Ground 1

    1.The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

    The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her returns to Malaysia.

    Ground 2

    2.The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.

    Ground 3

    3.The Tribunal has failed to investigate applicant's claim, specially the grounds of persecution in Malaysia.

    GROUND 1

37. In relation to Ground 1, it is apparent that the Tribunal, after making adverse findings in respect of the refugee criteria, turned to consider whether the applicant met the criteria for complementary protection. In its reasons, the Tribunal incorporated the relevant law in an annexure A.

38. On the face of the Tribunal’s reasons in relation to complementary protection in paragraphs 39 to 42, the Tribunal correctly identified the relevant law and made findings that were open to it. This included taking into account the findings that the Tribunal had made under the refugee criteria which were dispositive of the applicant’s claims in relation to complementary protection. 

39. It was open to the Tribunal to take into account the findings made under the refugee criteria. The Tribunal’s reasons in relation to complementary protection refer to having considered the applicant’s claims individually and cumulatively. There is no basis to find that the Tribunal adopted an erroneous or overly narrow construction of the statutory provisions.

40. The Court accepts the first respondent’s submissions that the Tribunal’s adverse credibility findings were open for the reasons it gave, which identified numerous inconsistencies and provided a logical probative basis for the adverse credibility findings. There is no basis to find any misconstruction as to the meaning of significant harm in assessing the complementary criteria. Nor was there any erroneously narrow meaning given to the assessment of real risk.

41. No jurisdictional error is made out by Ground 1.

    GROUND 2

42. In relation to Ground 2, this appears to be a disagreement with the adverse findings and invites impermissible merits review. Under s 5AAA of the Act, it was for the applicant to provide sufficient evidence to establish her claims, for the reasons given earlier.

43. The adverse credibility findings were open to the Tribunal for the reasons given above and the Tribunal made findings dispositive of the applicant’s claims. 

44. The Court accepts the first respondent’s submission that Ground 2, in the reference to reasonable satisfaction, invites impermissible merits review.

45. No jurisdictional error is made out by Ground 2.

    GROUND 3

46. In relation to Ground 3, as earlier identified, it was for the applicant to provide sufficient evidence to establish her claims pursuant to s 5AAA of the Act. There has not been identified any critical fact, the existence of which was easily ascertainable, so as to give rise to some duty to investigate.

47. On the face of material before the Court, the Tribunal complied with the statutory requirements and also complied with its obligations of procedural fairness under pt 7, div 4 of the Act. The Tribunal invited the applicant to attend a hearing in accordance with ss 425 and 425A of the Act.

48. On the face of the Tribunal’s reasons, the applicant had a real and meaningful hearing before the Tribunal. The Tribunal’s reasons reflect a genuine intellectual engagement with the applicant’s claims. The Tribunal did conduct the statutory review required in relation to the applicant’s claims and made dispositive findings. No duty to investigate the applicant’s claims, arose in the circumstances of the present case in the nature of a sweeping duty to make inquiry.   

49. No jurisdictional error as alleged in Ground 3 is made out. 

50. Accordingly, the application is dismissed.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       24 September 2021