FMN17 v MICMSMA
[2020] FCA 326
•16 March 2020
FEDERAL COURT OF AUSTRALIA
FMN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 326
Appeal from: FMN17 by her litigation guardian v Minister for Immigration and Anor [2018] FCCA 3499 File number: WAD 581 of 2018 Judge: STEWARD J Date of judgment: 16 March 2020 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia – whether primary judge erred in dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a refusal of a protection visa application – where Tribunal made a finding that there was a substantial risk that the child appellant would be forced into a marriage if removed from Australia – whether the Tribunal misapplied s. 36(2)(aa) of the Migration Act 1958 (Cth.) – whether the Tribunal failed to consider whether there was a real risk that the appellant would suffer “significant harm” as defined in s. 36(2A) Legislation: Migration Act 1958 (Cth.) ss. 5, 36 Cases cited: Abebe v. Commonwealth (1999) 197 C.L.R. 510
Minister for Immigration and Ethnic Affairs v. Guo (1997) 191 C.L.R. 559
R. (on the application of Quila) v. Secretary of State for the Home Department [2012] 1 A.C. 621
SZTAL v. Minister for Immigration and Border Protection (2017) 262 C.L.R. 362
Date of hearing: 17 February 2020 Date of last submissions: 3 March 2020 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 52 Counsel for the Appellant: Mr J. Cameron on a pro bono basis Counsel for the First Respondent: Ms S. J. Oliver Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
WAD 581 of 2018 BETWEEN: FMN17 BY HER LITIGATION REPRESENTATIVE
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
STEWARD J
DATE OF ORDER:
16 MARCH 2020
THE COURT ORDERS THAT:
1.The appeal be allowed with costs.
2.Orders 2 and 3 of the orders made by the Federal Circuit Court on 28 November 2018 be set aside and in lieu thereof:
(a)an order in the nature of certiorari be made to quash the decision of the second respondent dated 23 November 2017; and
(b)an order in the nature of mandamus be made remitting the matter to the second respondent to be re-determined in accordance with law.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
STEWARD J:
The infant appellant is the child of parents who are citizens of the Islamic Republic of Pakistan. She was born in Western Australia on 29 September 2014. Her father has been appointed her litigation representative. As set out below, she was the last member of her family to apply for a protection visa, which she did on 21 September 2015. A delegate of the first respondent (the “Minister”) refused to grant that visa on 29 April 2016. That refusal was then affirmed by the Administrative Appeals Tribunal (the “Tribunal”) on 23 November 2017. An application for judicial review of that decision was dismissed by a judge of the Federal Circuit Court on 28 November 2018. The appellant seeks to appeal that decision to this Court.
Background
The appellant’s father arrived in Australia in 2008 using an offshore higher education sector visa; he was subsequently granted an onshore higher education visa, the term of which was extended. The appellant’s mother and sibling joined the father in Australia in 2010. In 2011, the father unsuccessfully applied for a business sponsorship visa and for a temporary work skilled visa. The latter decision was affirmed by the Migration Review Tribunal in 2012. The father then sought ministerial intervention. This was refused in 2013. Prior to the appellant’s birth in 2014, her family sought the grant of protection visas. These applications were refused in 2014. Those decisions were subsequently affirmed following a review by the Refugee Review Tribunal. Another attempt at ministerial intervention was made. This was refused in 2015. Almost two weeks after this, the relevant application for a protection visa was made by the appellant.
The appellant’s initial claims to fear serious and significant harm for the purposes of s. 36(2)(a) and (aa) of the Migration Act 1958 (Cth.) (the “Act”) were summarised by the Tribunal at [38] as follows:
a.she does not have a visa to go to any other country. The Tribunal accepts this to be so;
b.she has a strong fear that she will face a very extreme level of threat(s) if she goes back to Pakistan;
c.Her maternal uncles ([names redacted]) may take her parents from her which will leave her life full of hardships at [a] very early age;
d.These hardships include being separated from one or both of her parents as her uncles have been threatening that her parents have to face the consequences of their choice of marriage, being a ‘love marriage’;
e.The ‘love marriage’ of her parents was against the wishes of members of the applicant’s maternal family. The Tribunal accepts that the applicant’s parents were not subject to an arranged or forced marriage;
f.she has not experienced harm in Pakistan; the Applicant has not departed Australia since birth. The Applicant accepts this to be so.
g.her mother’s uncles and her mother’s brother have strong support from other cousins and uncles; they all had a will to arrange her mother’s marriage to a direct cousin;
h.cousins and other uncles are supporting the two uncles against the applicant’s parents; these people have deep connections within the [Pakistan] government and its authorities and the army of Pakistan’. She claimed that one of the cousins is as Major in the Pakistan Army and that other cousins are in the Punjab Police;
i. Pakistan authorities would be used against her and her family; and
j.In relation to relocation, the applicant claimed that she will not be able to relocate to other parts of Pakistan, and if they do relocate, the persecutors will be able to track her and her family down using government authorities’.
(Errors in original.)
Certain additional claims were made before the delegate and were summarised by the Tribunal at [39] as follows:
a. the applicant’s parents met in 2004 and ‘courted’ from about 2006;
b.the parents married without the approval of the applicant’s uncle [mother’s brother] and her great-uncle’s [mother’s uncles]. Prior to her parent’s [sic] marriage in 2007, an arrangement had been made within the maternal family for the applicant’s mother to marry her direct cousin;
c.the applicant’s maternal uncle, great-uncle and cousins, were against the marriage due to the applicant’s father being from a different tribe. Note that at the subsequent Tribunal hearing neither the father nor mother of the applicant raised an issue related to tribalism before the Tribunal. The applicant’s father and mother are both Sunni Muslim as is the applicant; it would be reasonable to accept that the respective families of the applicant’s parents are also Sunni Muslim;
d.the maternal family members had made verbal threats prior to the marriage, believing the marriage would not proceed. The marriage did proceed and it was a surprise to the applicant’s maternal uncle and great uncles as they were unable to prevent it;
e.as a result of the marriage, the applicant’s parents received threats in Pakistan prior to departing to Australia;
f.The applicant’s maternal great-uncle, as head of the family, still wishes to harm her parents due to their act of marrying contrary to his wishes being a challenge to his ego;
g.The applicant will experience a life of hardship on return to Pakistan due to one or possibly both parents being taken from her by her mother’s brothers, cousins and / or uncles;
h.the applicant’s father believes he may also be harmed by his in-laws in an attempt by them to force a divorce; he will not divorce in consideration for the safety of his children;
i.the applicant’s maternal great-uncle is well-connected to Pakistan authorities and will use his influence to force a divorce of the applicant’s parents. He has used the police in an attempt to separate her parents in the past;
j.the applicant may be kidnapped by her maternal relatives in revenge against the parent’s marriage;
k.a threat to the applicant’s parents still exists due to the ‘bruised ego’ of the maternal great-uncle and other relatives; and
l. her parents are at risk of being subject to honour killings in Pakistan.
(Errors in original.)
Significantly, the appellant also claimed that if she were to be returned to Pakistan she would be forced to marry her cousin against her wishes. The claim was recorded by the Tribunal as follows at [123]:
… the child applicant fears she will suffer harm amounting to serious harm in Pakistan because:
a.her parents married in a love marriage in Pakistan against the wishes of her maternal family, and in particular her maternal uncle and great uncles …;
b.these people may take her parents from her through forced separation and consequent divorce;
c.if she is separated from her parents this will leave her future life full of hardships at a very early age;
d.She will be forced to marry her direct cousin against the wishes of her parents and her wishes; and
e.Pakistan authorities would be used against her and her family because of connections between her maternal family and those authorities;
(Emphasis added and errors in original.)
Both parents gave evidence before the Tribunal which was considered in some detail. Critically, it would appear that a vital source of information about conditions in Pakistan, and about the possible behaviour of the mother’s family if she were returned to Pakistan with the appellant, was the mother’s sister. The sisters spoke to each other regularly by telephone. The Tribunal’s hearing took place over two days in April and June 2017. At the end of the first day, the Tribunal told the parents that the phone calls were significant and that if they wanted to have evidence given by the sister at the second day of the hearing, arrangements could be put in place for this to happen. They were told that the Tribunal would be likely to be assisted if the sister gave such evidence. No such arrangement was sought.
The Tribunal, in its carefully prepared and detailed reasons, well understood the need for care in assessing the credit worthiness of the appellant’s parents. It said the following at [26] of its reasons for decision:
In this matter the Tribunal cannot assess the credibility of the Applicant. The Tribunal’s task of fact-finding in this matter has involved assessments of the submitted documents and the credibility of [the] applicant’s parents, who seek to ‘represent’ the applicant’s interests in this application for review. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions. In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
(Footnote omitted.)
In that respect, the Tribunal expressly referred to the following passage from the reasons for judgment of Gummow and Hayne JJ. in Abebe v. Commonwealth (1999) 197 C.L.R. 510 at 577‑578 [191]:
… the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself … those difficulties are to be confronted by the Tribunal in the execution of its tasks …
The Tribunal made the following relevant findings of fact at [113]:
…
h.The Tribunal finds it to be plausible that there may have been significant levels of tension and disapproval of the marriage from the applicant’s maternal family. There is no evidence of disapproval from the paternal family before the Tribunal. It is plausible that tensions and disapproval for the marriage still exists towards the applicant’s parents by reason of their decision to marry.
i.The Tribunal accepts that members of the maternal family, including the applicant’s uncle and great uncles, may have strongly desired for the applicant’s mother to marry a person other than the applicant’s father.
j.There is insufficient evidence before the Tribunal for it to make a finding that the applicant would be forced by a member of her maternal family, including her maternal Uncle, to marry her cousin [her maternal Uncle’s son] or any other person in the foreseeable future upon her return to Pakistan;
k.There is insufficient evidence before the Tribunal for it to make a finding that the applicant’s Uncle, or other members of her maternal family, will force her parents to separate and subsequently divorce;
l.There is insufficient evidence before the Tribunal for it to find that the applicant’s maternal Uncle will pick up, snatch and / or kill the applicant’s father, mother or the Applicant herself;
m.The Tribunal finds that, based upon the available evidence and information, there has not been any violence inflicted upon the applicant’s family whilst they lived in Pakistan and nor have there been any direct or indirect threats to carry out serious harm to the applicant or her family members by members of the maternal family.
(Errors in original and emphasis added.)
Claim for protection as a refugee
The Tribunal found that there was no evidence that the appellant would suffer persecution in Pakistan because of her race, religion, nationality or political opinion (at [127]). It nonetheless decided that the appellant was a member of a social group being “Pakistani children born out of love marriages”. Again, it nonetheless found that objectively considered the appellant would not be persecuted for being a member of this group. The evidence about the risk of persecution was insufficient. It reasoned at [133] as follows:
The Tribunal considers that the evidence of the applicant’s father and mother concerning the phone calls with [the mother’s sister] can only be accorded minimal weight. Considered from an objective viewpoint, the Tribunal considers that there is insufficient evidence upon which the Tribunal could reasonably find that the Applicant has a subjectively held fear that:
a)her maternal uncles may ‘take her parents from her’ through forced separation and consequent divorce;
b)she will be forced to marry her direct cousin against the wishes of her parents and her own wishes; and
c)Pakistan authorities would be used against her and her family because of connections between her maternal family and those authorities.
The Tribunal also considered country information from the Department of Foreign Affairs and Trade (“D.F.A.T.”) which indicated that returnees to Pakistan do not face a significant risk of societal violence or discrimination because they are failed asylum seekers. The Tribunal accordingly concluded that the requirements of s. 36(2)(a) of the Act were not made out and said at [140] as follows:
In this matter the Tribunal has found that, objectively considered, the Applicant does not have a subjectively held fear of persecution in Pakistan for reason of her membership of the identified particular social groups. As such, she does not have a ‘well founded fear’ of persecution in that country. The Tribunal finds that whilst the applicant is a member of the identified particular social groups, there is not a real chance that if she returned to the receiving country Pakistan that she would be persecuted for reasons of membership of the two particular social groups or for any other reason in section 5J(1) of the Act. The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion.
The Tribunal was otherwise satisfied that arranged and forced marriages may amount to “serious harm” for the purposes of ss. 5J(5) and 36(2)(a) (at [125]).
Claim for complementary protection
The Tribunal then went on to give very detailed consideration to the possible application of s. 36(2)(aa) of the Act. It considered the country information that was available and found that there was “more than merely a speculative possibility of the [appellant] being exposed to the real risk of arranged or forced marriage at a tender age” should she return to her parents’ home area in Pakistan. However, it would appear that it did not consider that an arranged or forced marriage could amount to “significant harm” for the purposes of s. 36(2A) of the Act. That provision provides:
A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
The term “cruel or inhuman treatment or punishment” is defined by s. 5(1) of the Act to mean as follows:
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The reference to the “Covenant” is to the International Covenant on Civil and Political Rights(1966) (the “Covenant”), a copy of the English text of which is set out in Sch. 2 to the Australian Human Rights Commission Act 1986 (Cth.). Article 7 of the Covenant provides:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
The term “degrading treatment or punishment” is defined in s. 5(1) of the Act as follows:
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” are not taken from the Covenant.
The term “torture”, modelled on the definition of that term in Art. 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), is defined in s. 5(1) of the Act as follows:
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to the “a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant” is ;
but does not include an act or omission arising only from, inherent in or incidental to the International, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The Tribunal carefully considered the specific risks the appellant might face if returned to Pakistan. It observed at [144]:
The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a). In MIAC v SZQRB [(2013) 210 FCR 505], the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition. A ‘real chance’ in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.
(Footnotes omitted.)
The country information, prepared by D.F.A.T., made the following observations about forced and child marriages in Pakistan:
Child marriage—defined as marriage involving a male under the age of 18 years or a female under the age of 16 years—is illegal under the Child Marriage Restraint Act 1929. In 2014, the Sindh Assembly adopted the Sindh Child Marriage Restraint Act, increasing the minimum age of marriage for girls to 18 in Sindh province. In practice however, child marriage is widespread across Pakistan. According to UNICEF, around three per cent of girls are married before the age of 15, and 21 per cent are married before the age of 18.
…
… forced marriage is a significant issue in Pakistan. While the true number of forced marriages taking place annually in Pakistan is unknown, the Human Rights Commission of Pakistan (HRCP) reported that in the month of January 2012 alone, “about 338 cases of forced marriages took place in 31 districts across Pakistan”.
A common cause of forced marriage, particularly of underage girls, is to settle issues of honour. The practice of exchanging or providing a young female relative to a family with whom one has “dishonoured” is commonly referred as swara. In places such as the Swat valley in [Khyber Pakhtunkhwa], girls as young as five have reportedly been exchanged to settle a dispute of honour. One of the main reasons forced marriage endures in Pakistan cited by scholars is that the attitude persists that females are family commodities, to be exchanged in order to settle disputes, for financial gain, or for other social or cultural reasons.
According to Integrated Regional Information Network (IRIN), it is also not uncommon for underage daughters of members of the diaspora to return to Pakistan and [Azad Jammu and Kashmir] to be forcibly married, often to ‘distant relatives’: “We hear of around 300 cases of such marriages annually, though many more may actually take place,” Khalida Salimi, executive director of the Islamabad-based NGO Struggle for Change (SACH), told IRIN. She said most “but not all” cases involved girls …
… The age of puberty is also used as the age of adulthood for girls in numerous court cases, who declare marriages with female children valid due to the fact that they have reached puberty. This is in direct contravention of international standards and international conventions ratified by Pakistan. Furthermore, there is little implementation of the 1929 law, punishing persons involved in child marriages, including the parents, the registrar and even the groom, if above the age of 18.
... reports indicate that it is not uncommon in parts of Pakistan for children who have not reached puberty to be married. In one reported case in 2012, a village panchayat (tribal council) in Sahiwal ordered that a five year old girl marry a six year old boy after the girl’s older brother eloped with the boy’s sister. According to the HRCP, the girl’s father was given the option “to pay the panchayat one million rupees if he refused to give his daughter away”.
(Footnotes omitted.)
Based on the foregoing country information, the Tribunal made the following finding at [146]:
In assessing the complementary protection criteria, the Tribunal is guided by the above country information concerning forced marriage and honour killings of primarily women [but also men] in Pakistan. There is a high incidence of such harm being occasioned to women, including female children, arising from conflicts arising out of family honour disputes. Country information suggests that it is not uncommon for underage daughters of members of the diaspora to return to Pakistan and to be forcibly married, often to ‘distant relatives’, with sources indicating there may be ‘around 300 cases of forced marriages annually, though many more may actually take place’. Further, a common cause of forced marriage, particularly of underage girls, is to settle issues of honour. The practice of exchanging or providing a young female relative to a family with whom one has “dishonoured” is commonly referred as swara. In places such as the Swat valley in [Khyber Pakhtunkhwa], girls as young as five have reportedly been exchanged to settle a dispute of honour. One of the main reasons forced marriage endures in Pakistan as cited by scholars is that the attitude persists that females are family commodities, to be exchanged in order to settle disputes, for financial gain, or for other social or cultural reasons.
(Footnotes omitted.)
The Tribunal’s relevant conclusion in relation to the issue of significant harm appears at [149]‑[150]. Each paragraph is critical to the disposition of this appeal. The paragraphs are as follows:
149.Having considered the country information, the Tribunal accepts that considers that [sic] there is more than merely a speculative possibility of the applicant being exposed to the real risk of arranged or forced marriage at a tender age should she return to her home area of Gujrat in Punjab Province, notwithstanding she will likely be living with her parents. The Tribunal accepts that there is considerable cultural pressure in Pakistan for young women and girls to be married in arranged or forced marriages. Whilst the Tribunal does not accept there has been pressure brought to bear thus far, it cannot discount the possibility of this occurring upon the return of the child applicant to Pakistan, considering it accepts the parent’s [sic] marriage was not accepted by the maternal family.
150.The Tribunal has given consideration to whether arranged or forced marriage could satisfy any of the five definitions of ‘significant harm’ and considers that none are satisfied upon the available evidence considered with the country information.
(Emphasis added.)
The Tribunal concluded at [153] as follows:
In the circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country that there is a real risk that she will suffer significant harm as defined.
Federal Circuit Court Proceeding
The appellant was not represented by a lawyer before the Federal Circuit Court. The grounds of judicial review relied upon before the primary judge were as follows:
1.Decision by the Honourable second respondent is a clear breach of number of obligations under the International Law, including
•Article 3(2) of the [Convention of the Rights of the Child] (in all actions concerning children… The best interest of the child shall be primary consideration);
•Article 22 of the [Convention of the Rights of the Child] (right of child asylum seekers to receive appropriate protection and humanitarian assistance);
•Article 37 of the [Convention of the Rights of the Child] (right not the be subjected to torture of the cruel, inhuman, of degrading treatment or punishment: no arbitrary deprivation of liberty);
2.In Para 146 of the Decision Record, Honourable Member uphold the Country information and agrees that it is very common and there are many cases similar to Applicant, where girl, young as the age around five have reported been exchanged to settle a dispute of honour.
3.Honourable Member has emphases more on the situation/dealing of the parents of Applicant rather than vulnerability of tangible Applicant. Attached decision, Marked as “Annexure A” is clear proof of that.
4.In Para 147, Honourable Member is asking for link between removal from Australia and expose to fear in Pakistan. Where, link is clearly there, because Applicant does not hold a visa of any other country (Honourable Member apprehends this in Para. 38(a) of the attached decision letter) in the world so, because she does not have visa for any other country in the world so clearly, when she will be removed from Australia she has to go back to Pakistan, unless Australian Department of Immigration and Border Protection arrange otherwise.
(Errors in original.)
Judge Street rejected each ground of appeal in four paragraphs. The first ground was dismissed on the basis that the Tribunal was not obliged to consider the best interests of the appellant for the purposes of the Convention on the Rights of the Child. The primary judge otherwise decided that the findings made by the Tribunal were open to it, having regard to the material adduced, and that it had complied with its obligations of procedural fairness. Grounds two, three and four were characterised as a series of disagreements on the merits with the adverse findings made by the Tribunal. As such they failed to identify any jurisdictional error.
Grounds of Appeal
The original grounds of appeal in the notice of appeal filed on 12 December 2018 were, save in two instances, the same as those advanced before the primary judge. The two new grounds were as follows:
In Para 45 (of AAT decision) Honourable Member accepted that typing error is made by delegate but we been emphasising that this is not an error but true judgement that it is not safe for FMN17 to go back to Pakistan due to potential harm.
Honourable JUDGE STREET could not consider our appeal to provide another opportunity to applicant in order to provided supportive documents and in fact finalised the case while standing.
(Errors in original.)
Initial Hearing of the Appeal
This appeal was set down for hearing on 22 May 2019. Before me, the appellant remained unrepresented. I raised with Counsel for the Minister a concern I had with [150] of the reasons of the Tribunal. As already mentioned, in that paragraph, on one view, the Tribunal expressed a proposition that “arranged or forced marriage” could not satisfy any of the five definitions of “significant harm” in s. 36(2A) of the Act. I raised with Counsel that, in my view, it was possible for the victim of a forced marriage to suffer, for example, “degrading treatment” for the purposes of s. 36(2A). I referred Counsel to the decision of the Supreme Court of the United Kingdom of Great Britain and Northern Ireland in R. (on the application of Quila) v. Secretary of State for the Home Department [2012] 1 A.C. 621. That case concerned certain Immigration Rules designed to deter forced marriages. It is unnecessary to consider those rules in any detail. However, what is noteworthy are the opinions of some of the Justices of the Supreme Court concerning the issue of forced marriage. Lord Wilson J.S.C. said at 633 [9]:
A forced marriage is a marriage into which one party enters not only without her or his free and full consent but also as a result of force including coercion by threats or by other psychological means: section 63A(4) and (6) of the Family Law Act 1996, inserted into it by section 1 of the Forced Marriage (Civil Protection) Act 2007 (“the Act of 2007”). The forcing of a person into marriage is a gross and abhorrent violation of her or his rights under, for example, article 16(2) of the Universal Declaration of Human Rights 1948, article 23(3) of the International Covenant on Civil and Political Rights 1966 and article 12 of the ECHR. A forced marriage is entirely different from an arranged marriage in which, in conformity with their cultural expectations, two persons consent to marry each other pursuant to an arrangement negotiated between their respective families.
Baroness Hale of Richmond J.S.C. (as her Ladyship then was) said at 650 [64]:
… In 2000 a Home Office Working Group, in A Choice by Right, defined forced marriage as “a marriage conducted without the valid consent of both parties where duress is a factor”: p 6. But the Group took a broad view of what constituted duress. They pointed out that, for the purpose of rendering a marriage voidable under section 12(c) of the Matrimonial Causes Act 1973, the Court of Appeal in Hirani v Hirani (1984) 4 FLR 232 had defined the test for duress as “whether the mind of the applicant (the victim) has in fact been overborne, howsoever that was caused”: p 7. They went on to explain, at p 11, that
“There is a spectrum of behaviours behind the term forced marriage, ranging from emotional pressure, exerted by close family members and the extended family, to the more extreme cases, which can involve threatening behaviour, abduction, imprisonment, physical violence, rape and in some cases murder.”
More recently, The Right to Choose: Multi-agency statutory guidance for dealing with forced marriage (2008), takes a similar broad view, defining a forced marriage as one “in which one or both spouses do not (or, in the case of some vulnerable adults, cannot) consent to the marriage and duress is involved”. The duress in question is not limited to physical duress, but may involve emotional, psychological, financial or sexual duress. An example given of emotional duress is making the individual feel as though she is bringing shame upon her family by not entering into the marriage. Hence both the definitions of a forced marriage referred to above give a wider meaning to duress than its traditional definition in the criminal law, which is limited to threats of physical harm: Archbold, Criminal Pleading Evidence and Practice 2011, para 17.120 …
Lord Brown of Eaton-Under-Heywood J.S.C. said at 656 [81]:
Forced marriages are an appalling evil. Most commonly the victims are young women and all too often such marriages occur within the immigrant community. One reason for this, amongst several identified by the National Centre for Social Research (NCSR) in their July 2009 report Forced Marriage—Prevalence and Service Response, is that:
“Forced marriage can be a way of ensuring land, property and wealth remain within a family. It may take place because of a long-standing family commitment or to appease an aggrieved family member. This is often associated with assisting a claim for UK residency and citizenship.”: para 2.1.
I respectfully agree with the foregoing observations of the Supreme Court about the nature of forced marriages. In particular, I agree with Lord Brown that forced marriages are “an appalling evil”.
The hearing of the appeal was adjourned. The Court made a pro bono referral to the Western Australian Bar, and Mr J. Cameron of Counsel generously agreed to represent the appellant. The Court is very grateful to him for his assistance. The Court also ordered, in perhaps unusual circumstances, the appellant’s father to be her litigation representative.
Hearing of the Appeal
Mr Cameron filed with the Court an amended notice of appeal which engaged with the Tribunal’s reasoning about the risk of forced marriage. The Minister, very properly, consented to these amendments. I gave leave for them to be relied upon. The grounds were as follows:
The learned primary judge erred:
1.when his Honour failed to find that the Second Respondent [‘the Tribunal’] had erred in law when:
1.1.having accepted at [149] that ‘there is more than merely a speculative possibility of the applicant being exposed to the real risk of arranged or forced marriage at a tender age should she return to her home area’;
1.2.it then considered at [150] that none of the five definitions of ‘significant harm’ in section 36(2A) of the Migration Act 1958 (Cth) was satisfied ‘upon the available evidence considered with the country information’; and
1.3. having misconstrued the provisions of the section; then
1.4.held that the appellant was not entitled to the complementary protection under the Act for which she had applied.
…
1.6. The Tribunal failed:
1.6.1. to take into consideration:
1.6.1.1. the status of the appellant as a child; and
1.6.1.2.the protective provisions of the Convention on the Rights of the Child as these applied to the appellant in particular the rights under Articles 1, 2, 3(1) and (2), 4, and 37(a) ; and
1.6.2.to distinguish between an arranged marriage and a forced marriage, the former being permissible, and the latter unlawful in Australia and internationally; and
1.6.3. to have regard to:
1.6.3.1.Australia’s proscription of forced marriage by enacting the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth); and to
1.6.3.2.the wide-ranging definition of ‘forced marriage’ in section 270.7A of the Criminal Code Act [1995] (Cth) [‘the Code’]; and to
1.6.3.3.the substantial penalties provided for in section 270.7B of the Code; and to
1.6.3.4.Australia’s international obligations in protecting persons within its jurisdiction against forced marriage, including but not limited to female children such as the appellant.
The appellant’s submissions
In general terms, Mr Cameron submitted that the primary judge erred in not deciding that the Tribunal had made the following three errors at [150], each of which was said to be jurisdictional in nature:
(a)it misconstrued s. 36(2A) of the Act at [150];
(b)it failed to apply the correct construction of s. 36(2A) to the facts; and
(c)it failed to have regard to certain international conventions, such as the Convention on the Rights of the Child and the Covenant.
Mr Cameron submitted that forced marriage always carries with it the risk that it would involve “torture”, “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”, as those terms are defined by s. 5(1) of the Act. He emphasised that forced marriage is an inherently detestable practice. It takes place without the consent of the person, or in circumstances where the person is not capable of giving consent because, for example, they are a child or suffer from a mental disability. The practice is a criminal offence in Australia (s. 270.7B of the Criminal Code Act 1995 (Cth.)) and is condemned by numerous international treaties: see, for example, Art. 23(3) of the Covenant. In amplification, it was submitted that forced marriage:
(a)could amount to “torture” as defined because of the risk that it would involve severe pain or suffering, whether physical or mental, intentionally inflicted for any reason based on discrimination that is inconsistent with the articles of the Covenant;
(b)could amount to “cruel or inhuman treatment or punishment” because of the risk of severe pain or suffering, whether physical or mental; and
(c)could amount to “degrading treatment or punishment” because of the risk of extreme humiliation which is unreasonable.
As evidence of these propositions, Mr Cameron referred to the country information about Pakistan before the Tribunal which referred to underage daughters being married forcibly to “distant relatives” and to exchanging daughters as a means of settling clan disputes. In particular, the country information states that a “common cause” of forced marriage, “particularly of underage girls”, is to settle an issue of honour, commonly referred to as “swara”. That is the claim made here by the appellant’s litigation representative.
It was said that the Tribunal erred in its application of s. 36 in circumstances where it had made the finding at [149] that the risk of the appellant being forcibly married was “more than merely a speculative possibility”. It answered its finding about that risk at [150], with what Mr Cameron contended was a flawed legal conclusion about the definitions of “torture”, “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”.
The Minister’s submissions
I should at this point record an area of agreement between the parties which is of critical importance. Both Mr Cameron and Ms Oliver of Counsel, who appeared for the Minister, agreed that the phrase “more than merely a speculative possibility” (at [149]) should be read as a finding that there was a substantial, as distinct from remote, risk that the appellant would be forcibly married if returned to Pakistan. In other words, for the purposes of s. 36(2)(aa) of the Act, there was a “real risk” that a forced marriage would be imposed on the appellant if she were to be deported, with her family, to Pakistan.
Ms Oliver’s concession about this issue reflected a high degree of fairness and professionalism on her part. The finding that there was a substantial risk that the appellant might be subject to a forced marriage also makes this case perhaps very different from other appeals involving families from Pakistan.
Notwithstanding the concession, Ms Oliver submitted that the Tribunal did not err at [150], in the ways contended for by Mr Cameron. She agreed that the reasoning at [150] was perhaps too compact, but submitted that it should be read as a finding by the Tribunal that the appellant had failed to discharge her onus of proof of showing that any such forced marriage would meet that stringent definitions of “torture”, “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”. Ms Oliver emphasised the reference in [150] to the Tribunal’s failure to be satisfied “upon the available evidence considered with the country information”. In that respect, she relied upon the Tribunal’s earlier findings that there was insufficient evidence to conclude:
(a)that the appellant would be forced by a member of her maternal family, including her maternal uncle, to marry her cousin or any other person in the foreseeable future upon her return to Pakistan (at [113](j));
(b)that the appellant’s uncle, or other members of her maternal family, would force the appellant’s parents to separate and subsequently divorce (at [113](k)); or
(c)that the appellant’s material uncle would pick up, snatch and/or kill the appellant’s father, mother or the appellant herself (at [113](l)).
In making her submissions, Ms Oliver did not seek to avoid the horrific nature of forced marriage. She agreed it was “abhorrent”. But that general conclusion about the nature of forced marriage, it was said, did not sufficiently address the specific requirements of the defined terms of “torture”, “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”.
Disposition
Two observations should be made about the Tribunal’s reasons at [149]-[150]:
(1)first, the finding made about the risk of forced marriage was based upon the country information as well as upon the specific circumstances of the appellant. In the latter case, whilst the Tribunal was not prepared on the evidence to find that, for example, the appellant’s uncle would force her to marry her cousin, it did positively find that the appellant’s uncle and great uncles “may have strongly desired” the appellant’s mother to have married someone other than the appellant’s father. That is why in the last sentence of [149], the Tribunal found that it could not discount “the possibility” that the appellant would be forcibly married; and
(2)secondly, the Tribunal’s conclusion at [150] is devoid of supporting reasoning. It either represents a conclusion of law concerning the scope of s. 36(2A) which, according to the Tribunal and on this basis, cannot apply to the risk of forced marriage generally, or represents a failure to apply that provision to the specific facts found. Either way, and with great respect to Ms Oliver, I think the Tribunal erred in law.
To decide this appeal, it is sufficient for me to consider only one of the three species of “significant harm” relied upon by the appellant, namely “degrading treatment or punishment”. It is also unnecessary for me to determine whether the Tribunal erred by failing to consider the international treaties identified by Mr Cameron.
In SZTAL v. Minister for Immigration and Border Protection (2017) 262 C.L.R. 362, the plurality in the High Court expressed two propositions which are relevant:
(1)first, that the definition of “degrading treatment or punishment” set out above is not taken from the Covenant (at 366 [5] per Kiefel C.J., Nettle and Gordon JJ.); and
(2)secondly, that the act or omission said to constitute “degrading treatment or punishment” must have been intended to cause, relevantly here, “extreme humiliation which is unreasonable”. In that respect, an intention of a person as to a result concerns that person’s “actual, subjective, state of mind” (at 372 [27] per Kiefel C.J., Nettle and Gordon JJ.); oblique intention is not sufficient (at 397 [103] per Edelman J.).
If what was said at [150] of the Tribunal’s reasons represents a conclusion of law that the act of forcing a person into marriage could never constitute “degrading treatment or punishment”, then I respectfully disagree with it. It is plain that many forced marriages may involve and be intended to cause extreme humiliation which is unreasonable, to use the language of the definition of “degrading treatment or punishment” (I note that the exclusions in that definition are not in issue in this appeal). As the 2000 Home Office Working Group, in “A Choice by Right”, observed, in a passage highlighted in the judgment of Baroness Hale in Quila (as set out above):
There is a spectrum of behaviours behind the term forced marriage, ranging from emotional pressure, exerted by close family members and the extended family, to the more extreme cases, which can involve threatening behaviour, abduction, imprisonment, physical violence, rape and in some cases murder.
Marriage is ordinarily an outward expression of love between two persons. The act of forcing a person to marry another person whom they do not love, and without their consent, is, in my view, an act which should be characterised as intended to cause humiliation; that humiliation would in most cases certainly be extreme and be entirely unreasonable.
If what was said at [150] did not represent a legal conclusion that forced marriage can never amount to “significant harm” in s. 36(2A) of the Act but rather a conclusion about the evidence before the Tribunal then, with respect, it erred because it failed to undertake its statutory task of applying that provision to its finding that there was a substantial risk that the appellant would be forcibly married if returned to Pakistan.
In Minister for Immigration and Ethnic Affairs v. Guo (1997) 191 C.L.R. 559, Brennan C.J., Dawson, Toohey, Gaudron, McHugh and Gummow JJ., observed that as little as a 10 per cent chance of persecution could constitute a real chance of persecution. Their Honours went on to say at 574-575:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
(Emphasis added.)
The foregoing passage, which addressed the then refugee test in the Act, applies equally to the need to form a view about the risk of “significant harm” for the purposes of s. 36(2)(aa) of the Act.
Here, the Tribunal did not make an attempt to determine what was likely to occur in the future as a result of its finding that there was a substantial risk that the appellant would be forcibly married. It did not appear to have considered the possibility that, for example, there was an equally substantial risk that if the appellant were to be forcibly married it might take place in a way that involved the imposition of extreme humiliation; that it might involve “threatening behaviour, abduction, imprisonment, physical violence, rape and in some cases murder”, to use the language of the UK 2000 Home Office Working Group.
Of course, the onus lay at all times on the appellant to make out her case. However, the finding made about the risk of forced marriage obliged, in my view, the Tribunal to go further and consider the risk that forced marriage might involve “significant harm” (as defined). The very concept of forced marriage is pregnant with the likelihood of a range of damaging behaviours. It is, as Lord Wilson J.S.C. has observed, “a gross and abhorrent violation” of a person’s rights.
In that respect, the Tribunal was not required to make a positive finding, one way or the other, that the appellant would, if returned to Pakistan, be forcibly married in a way that would constitute one of the heads of “significant harm”. Rather, the Tribunal was required to consider whether there was a “real risk” that the appellant would suffer “significant harm”. The absence of specific evidence about the nature of such a forced marriage was no necessary barrier to a positive finding about the presence of that risk. The application of s. 36(2)(aa) of the Act mandates the making of a prediction about the future. The prediction made here by the Tribunal was that there was a substantial risk of the appellant being forcibly married. In other words, there was a substantial risk that the appellant would face in Pakistan an “appalling evil”, to use the language of Lord Brown of Eaton-Under-Heywood J.S.C. Such a finding required the Tribunal to consequently make a prediction about whether or not there was a “real risk” that the appellant would thereby suffer “significant harm”. With great respect, it did not do this.
It follows that the Tribunal erred at [150]. I have no doubt that the error was material. A proper consideration of the consequences of the Tribunal’s finding about the risk of forced marriage, may well have led to a different conclusion.
The appeal should be allowed with costs.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward. Associate:
Dated: 16 March 2020
5
1
1