GEJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1375
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GEJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1375
File number(s): MLG 3593 of 2018 Judgment of: JUDGE CORBETT Date of judgment: 19 December 2024 Catchwords: MIGRATION - Protection (Class XA) (Subclass 866) visa – application for judicial review – whether Tribunal misconstrued ss 5J of the Migration Act 1958 (Cth) – whether Tribunal failed to consider evidence – not unreasonable - no failure to consider relevant evidence – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 499
Migration Regulations 1994 (Cth) Sch 2
Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 472; [2003] HCA 71
ARG15 v Minister for Immigration and Border Protection (2015) 250 FCR 109; [2016] FCAFC 174
Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) FCR 21; [2022] FCAFC 3
Minister for Immigration and BorderProtection v MZZMX (2020) 280 FCR 1; [2020] FCAFC 175
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644 [2022] HCA 15
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of last submission/s: 27 November 2024 Date of hearing: 27 November 2024 Place: Melbourne Counsel for the applicant Mr M Kenneally Solicitors for the applicant Mr L Bayly, Victoria Legal Aid Counsel for the respondents Mr C McDermott Solicitors for the respondents Mr A Gardner, Mills Oakley ORDERS
MLG 3593 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GEJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent be amended to Administrative Review Tribunal.
3.The amended application for judicial review filed 31 October 2024 be dismissed.
4.The applicant pay the respondents costs of and incidental to the application fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 CORBETT
The applicant seeks judicial review of a decision of the second respondent (Tribunal) made 2 November 2018 to affirm the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).
References in these reasons to “A1” pages are references to the Affidavit of Lawson John Bayly affirmed 13 October 2024 that was tendered and admitted as evidence at the hearing before this Court on 27 November 2024, marked exhibit “A1”. References to “CB” pages are references to the Court Book that was tendered and admitted as evidence, marked exhibit “R1”.
BACKGROUND
The applicant is a Malay national. The applicant first arrived in Australia on 30 March 2016 as the holder of a Tourist Visa (CB 43).
On 5 September 2016, the applicant applied for the visa (CB 1-44).
On 31 January 2017, a delegate of the Minister refused to grant the visa (49-59). The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Act). The delegate found that the applicant did not satisfy the primary and secondary criteria in ss 36(2)(a) and 36(2)(aa) of the Act (CB 58-9).
On 8 February 2017, the applicant filed an application for review with the Tribunal (CB 60-7).
TRIBUNAL DECISION
On 12 January 2018, the Tribunal sent an invitation to the applicant to appear at a hearing before it to give evidence and present arguments (CB 84-6).
On 15 February 2018, the applicant attended a hearing before the Tribunal and was assisted by an interpreter fluent in the Malay and English languages (CB 91-3).
On 9 November 2018, the Tribunal delivered reasons dated 2 November 2018 in which the member affirmed the decision of the delegate to refuse to grant the visa (Decision) (CB 107-16). In the Decision, the Tribunal considered the criteria for a protection visa prescribed by s 36 of the Act and Sch 2 to the Migration Regulations1994 (Cth) (Regulations). The Tribunal considered the definitions of a refugee and the meaning of a “well-founded fear of persecution” in ss 5H(1) and 5J(1)(a) of the Act respectively (CB 108 [3]-[5]). The Tribunal also referred to the circumstances in which a person will be taken not to have a well-founded fear of persecution in ss 5J(2)-(6) of the Act (CB 108 [6]).
The Tribunal then considered the policy guidelines in Ministerial Direction No. 56 made under s 499 of the Act (CB 109 [8]). The Tribunal identified the primary issue to be determined as follows (CB 109 [9]):
The issue in this case is whether the applicant meets the refugee criteria, and if not, whether she is entitled to complementary protection.
The Tribunal set out the background facts of the matter and circumstances that were uncontroversial (CB 109 [11]-[17]). The Tribunal then considered the evidence of the applicant given to the Tribunal at the hearing, and in particular, the circumstances in which the applicant left Malaysia and sought protection in Australia (CB 109-11 [18]–[38]).
At paragraph [39] of the Decision, the Tribunal made the following findings (CB 111 [39]):
The applicant gave a generally consistent, unembellished account of her experiences and concerns in Malaysia. The Tribunal accepts as credible her claims and evidence relating to Malaysia. However, it found her evidence about her application form to the department to be erroneous which she explained as caused by a friend filling it in because of her inadequate English. Unsatisfactory a situation as it may be, these matters were cleared up by the applicant in the hearing and she did not try to hide matters from the Tribunal. My concerns are not about her credibility but instead are about the applicant’s reasons for coming to Australia, and her claimed need for protection.
At paragraphs [40]-[42] of the Decision, the Tribunal found (CB 111-2 [40]-[42]):
The applicant claims to be a lesbian. She stated her attraction to women and spoke of a long-standing previous relationship with a woman including a name and some details. She also provided numerous photographs of her and her present partner in daily life and travel scenes and I give them regard. I accept that the applicant is a lesbian.
The applicant’s claims have been consistent within the hearing, and the Tribunal found her evidence at the hearing about her sexuality and her experiences in Malaysia to be unproblematic. It accepts that she is readily perceived to be a lesbian in certain situations – when in public with a partner for example or with friends.
The applicant has indicated that she is open about her sexuality to some people, including friends, and her family now know. Overall, the applicant appears to have lived fairly openly as a lesbian in Malaysia, although at first hiding it from family, and some people might presume that she is a lesbian based on her conduct.
The Tribunal then assessed whether, in light of the above findings of fact and having regard to other relevant factors, in particular, country information about the treatment of lesbians and other LGBTI individuals in Malaysia, there is a real chance of the applicant experiencing serious harm amounting to persecution if she returns to Malaysia (for reason of her membership of the particular social group of lesbians in Malaysia, or for any similar reason enumerated in s 5J(1) of the Act) (CB 112-3 [46]–[51]).
The Tribunal found that the applicant “did not suffer serious harm amounting to persecution in Malaysia, and did not leave Malaysia fearing that she was at risk of such harm”. The Tribunal concluded that the lodging of a protection visa application was couched in terms of being allowed to stay longer in Australia which suggests that the applicant was seeking to prolong her stay in Australia, rather than “fearing protection from future harm” (CB 113 [52]).
The Tribunal then considered Country Information Reports prepared by the Department of Foreign Affairs and Trade (CB 113 [53]–[55]).
At paragraph [56] of the Decision, the Tribunal said (CB 115 [56]):
Relevantly, the applicant has grown up and lived in the urban area of Sungai Petani in the state of Keda. She acknowledges being a lesbian and is perceived as such by a number of people. Although – even as a Malay Muslim woman – she has experienced some disapproval from family members, and others, she has nonetheless had a network of friends and had ongoing employment in a factory where her sexuality has not appeared to be an issue. Based on the available material, the Tribunal considers that the applicant will return to Sungai Petani or the surrounding area, and that she will resume a similar life, including social contacts and employment. There is no reason for me to conclude that her style of life is very different in Australia to what would occur in Malaysia. I find no reason to conclude that she could not live away from family for financial or other reasons having achieved this in Malaysia in the past.
At paragraph [57] of the Decision, the Tribunal observed (CB 115 [57]):
In terms of constraints in Malaysia – such as being possibly unable or restricted in expressing her sexuality openly, for instance by holding hands, being publicly affectionate with other women, or spending nights together – the Tribunal accepts that LGBTI individuals from Malaysia face a less liberal environment compared to Australia.
At paragraph [59] of the Decision, the Tribunal concluded (CB 115 [59]):
The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. Having regard to all of her circumstances, however, it is not satisfied that she faces a real risk of discrimination (including social or employment), psychological, physical or other harm that involves serious harm amounting to persecution. It is also not satisfied – again having regard especially to her past conduct – that the applicant ever has, or will need to in the future, modify her conduct (or appearance) or otherwise take measures in order to avoid persecutory harm.
The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s 5J(1) of the Act. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act (CB 116 [60]-[61]).
The Tribunal then considered the complementary protection criteria in s 36(2)(aa) of the Act. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm (CB 116 [64]).
The Tribunal concluded that the applicant does not meet the refugee criterion in s 36(2)(a) or the alternative criterion in s 36(2)(aa) of the Act (CB 116 [66]). The Tribunal affirmed the decision not to grant the applicant a Protection visa (CB 116 [69]).
PROCEEDINGS IN THIS COURT
On 28 November 2018, the applicant filed an application for judicial review in this Court under s 476 of the Act (CB 122-6). The grounds of review were as follows (verbatim):
I believe the Tribunal made an error of law because I believe I will be harmed significantly if I were to return to my country. I believe the case of s 36 (2) (aa) (“The Complementary Protection Criteria”) was wrongly decided.
The application for judicial review was accompanied by an affidavit affirmed by the applicant on 28 November 2018 (CB 128-42). The affidavit simply annexed a copy of the Decision and no more.
On 6 October 2020, a Registrar of the Court ordered that the Minister file and serve a bundle of relevant documents in electronic form by 4 November 2020. The Registrar also ordered that 28-days before the hearing, the applicant file and serve:
(a)any amended application with proper particulars of the grounds of the application;
(b) a supplementary court book, if any; and
(c) written submissions.
On 31 October 2024, the applicant filed an amended application for judicial review that identified four new grounds of review as follows (verbatim):
(1)The Tribunal misconstrued ss 5J(1) and (3) of the Migration Act 1958 (Cth) (Act) and/or asked itself the wrong question.
Particulars
(a) The Tribunal took into account the Applicant’s past modifications to her behaviour in finding she did not face a risk of harm, without considering if those modifications were of a type that could not be considered pursuant to s 5J(3); and/or
(b) The Tribunal failed to complete its statutory task to consider whether the Applicant had modified her behaviour to conceal her sexuality in the past.
(c) The Tribunal failed in considering s 5J(1)(b) to determine if the Applicant faced a risk of persecution if she were to be open about her homosexuality on return to Malaysia.
(2)The Tribunal misconstrued s 5J(4) of the Act and/or asked itself the wrong question and/or its reasoning was irrational, illogical or unreasonable.
Particulars
(a) The Tribunal’s finding that the restrictions on the expression of homosexuality applied to all Malaysians was irrational, illogical, or unreasonable; and/or
(b) The Tribunal misconstrued s 5J(4)(c) as not applying to restrictions that apply to the whole population but are enforced more severely against a particular social group.
(3)The Tribunal failed to complete its statutory task by failing to consider cogent or significant evidence.
Particulars
(a) The Tribunal found the Applicant had lived relatively openly as a lesbian in Malaysia at [42].
(b) The Applicant’s evidence was she did not disclose her homosexuality to her family until it was discovered in February 2016.
(c) The Applicant said she told friends who were not gay and lesbian about her sexuality after February 2016.
(d) The Applicant’s protection visa application indicated she left Malaysia for Australia in March 2016.
(e) The Tribunal failed to consider that the Applicant in fact left Malaysia immediately after her sexuality was discovered, based on the information provided in her protection visa application, rather than having lived openly.
(4)The Tribunal’s decision was legally unreasonable, irrational, or illogical as it was based on findings that lacked a rational and probative basis or evidence.
Particulars
(a) The Tribunal found the Applicant lived ‘fairly openly’ as a lesbian in Malaysia and hid her sexuality from her family ‘at first’.
(b) The evidence accepted or not rejected by the Tribunal was:
(i) The Applicant had been in a lesbian relationship for 15 years before her family discovered her sexuality.
(ii) The Applicant’s family discovered her sexuality in 2016.
(iii) The Applicant did not tell her workplace about her sexuality.
(iv) The Applicant and her partner wore headscarves to work to conceal their sexuality.
(v) The Applicant told her non gay and lesbian friends about her sexuality after she had problems with her family in February 2016.
(vi) The Applicant left Malaysia on 30 March 2016.
(c) The evidence does not provide any basis, and nor do the reasons provide any basis, to conclude:
(i) the Applicant lived fairly openly as a lesbian in Malaysia; and/or
(ii) the Applicant hid her sexuality from her family at first.
On 31 October 2024, the applicant filed an outline of written submissions, and an affidavit of Lawson John Bayley affirmed 31 October 2024 in which the applicant’s solicitor annexed a copy of the transcript of the hearing held by the Tribunal on 15 February 2019. The applicant also filed a list of authorities.
On 14 November 2024, the Minister filed an outline of submissions and a list of authorities.
The hearing of the application for judicial review was listed before this Court at Melbourne on 27 November 2024. Mr Kenneally of counsel appeared for the applicant and Mr McDermott of counsel appeared for the Minister.
The affidavit of Lawson John Bayley was tendered without objection and marked exhibit “A1”. The Court Book was tendered without objection and marked exhibit “R1”.
APPLICANT’S SUBMISSIONS
Counsel for the applicant informed the Court that the applicant now abandoned grounds one and two of the amended application for judicial review. The remaining grounds of review were:
(a)a failure to consider cogent and significant evidence, in particular, the fact that the applicant left Malaysia almost immediately after her sexuality was discovered because of fear of persecution and harm; and
(b)the Decision was legally unreasonable, irrational and illogical. In particular, the findings at paragraphs [42], [57] and [59] of the Decision, that the applicant lived “fairly openly” as a lesbian in Malaysia which she hid from her family at first (CB 135-8). The finding at [42] was not reasonable or open on the evidence and informed other conclusions reached by the Tribunal that did not reasonably and logically follow from the evidence.
In support of ground three of the amended application, the applicant relied on the affidavit of Lawson John Bayley and the transcript of the hearing before the Tribunal on 15 February 2015.
Counsel for the applicant referred to the applicant’s evidence to the Tribunal where the applicant said she was living with her family in Malaysia before she left to come to Australia in March 2016. When asked by the Tribunal why she decided to come to Australia, the applicant said, “I have a problem with my family” and “My family found out that I was conducting a same sex relationship. They did not – did not agree to this relationship, in fact they got angry – they were angry” (A1, page 8, question 15-16). The applicant then went on to give evidence that her mother caught her and her partner in her bedroom “red handed” in February 2016 (A1, page 8, question 17). The applicant also told the Tribunal that she had been in a relationship with her then partner for 15 years before they were discovered (A1, page 9, question 22). Both the applicant and her partner hid their relationship from both families. After the incident that occurred in February, her father told her partner’s father of the relationship (A1, page 10, question 36).
It was submitted that the findings at [42] of the Decision were flawed for the following reasons:
(1)the applicant’s oral evidence indicates her family only discovered the relationship in February 2016, and the Applicant came to Australia on 30 March 2016;
(2)the applicant’s oral evidence indicates that her non LGBTI friends only knew of her lesbian relationship after her family became aware in February 2016 (A1, page 17, questions 95-96);
(3)the applicant’s evidence was that her workplace did not know about her sexuality as she and her partner wore headscarves (A1, page 16, question 92); and
(4)the applicant said in her evidence that she only ever lived with her family, apart from spending some time at her ex-girlfriend’s house (A1, page 8, question 10 and page 12, question 66). The applicant hid her relationship from the people she lived with for around 15 years (A1, page 16, questions 90-91).
The applicant also gave evidence that if she was to return to Malaysia her family would not accept her (A1, page 12, question 65). The applicant was also apprehensive about returning to Malaysia and living alone and away from her family (A1, page 12, question 65).
It was submitted that this evidence suggested that the catalyst for the applicant to seek protection in Australia was the incident in February 2016 and that the time between her family discovering her sexuality and arrival in Australia was short, which the Tribunal “failed to appreciate”. The Tribunal wrongly assumed that the applicant lived openly as a lesbian in Malaysia and that her experiences in Malaysia were “unproblematic” (CB 135 [41]). The Tribunal also failed to consider evidence that corroborated the applicant’s evidence that she left Malaysia almost immediately after her family became aware of her sexuality (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111]-[112] (SZRKT). The Tribunal erred in assessing whether the applicant feared persecution and whether the applicant would be required to modify her lifestyle to avoid significant harm on her return to Malaysia.
In the alternative, it was submitted that the findings at [42] of the Decision that the applicant lived “fairly openly” and only hid her relationship from her family “at first” was illogical when compared to the evidence that the applicant had a 15-year relationship that she hid from her family until February 2016. The applicant then left Malaysia a month later. A decision may be affected by jurisdictional error if the findings of fact are affected by irrational or illogical reasoning (see XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131 at [64] per Markovic, Cheesman and Horan JJ and Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644 [2022] HCA 15 at [43] per Gordon J). The conclusion in [42] was said to inform other findings and conclusions of the Tribunal (CB 138 [57]). So too the finding that the applicant would not need to modify her behaviour to avoid harm if she returned to Malaysia (CB 138 [59]). The applicant’s evidence was that she hid her sexuality for 15 years to avoid persecution and harm and was not “fairly open” about her relationship. Therefore, she would have to modify her behaviour if required to return.
It was submitted that the Tribunal’s findings at [42], [57] and [59] of the Decision were unreasonable, illogical and irrational and were not supported by the evidence.
Counsel for the applicant referred to the decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 472; [2003] HCA 71 (Appellant S395) where the High Court held that it was erroneous to find that an applicant for protection would not suffer harm if they modified behaviour to avoid detection.
The applicant also submitted that it was irrational for the Tribunal to find in [42] that the applicant only hid her sexuality from her family “at first”. The evidence before the Tribunal was that she hid her sexuality from her family for 15 years and that it was only upon being caught by her mother “red-handed” in February 2016 that her family became aware of her sexuality. The applicant then left Malaysia a month later.
MINISTER’S SUBMISSIONS
Counsel for the Minister also relied on the transcript of the evidence of the applicant before the Tribunal. In particular, the applicant’s answer to the Tribunal member’s question “Were you able to live a relatively normal life?”, to which the applicant replied (A1, page 17, question 93):
Yes, a normal life. There were no problems. We would – she would - come to my – I would go to her house and she would come to my house. My parents knew about her and I’d be - assumed that we were just close friends.
Further. the applicant was asked “But you say none of your friends knew that you were in a relationship?”, to which the applicant replied (A1, page 17, question 95):
Yes, they were some friends of ours who knew about us, like for instance other dykes and also our friends who were close to me, they knew about us.
The applicant also gave evidence that her close friends also knew of her relationship, and that they accepted her relationship with another woman (A1, page 17, question 95). The Tribunal inquired about country information that LGBTI people face discrimination in Malaysia and asked the applicant “Have you had any problems from the wider society?”, to which the applicant said (A1, page 18, question 99):
Not really any problems from the wider community except that when we went out, people would look at us in a strange way.
The Tribunal asked the applicant, : “Is there any other kind of harm that you would face if you went back?”, to which the applicant said (A1, page 18, question 104):
No, I don’t think any sort of harm except the issue with my family and brother-in-law who really disapproved of my situation.
It was submitted that the applicant’s grounds of review ignore the “factual underpinnings” of the applicant’s own evidence and the Tribunal’s specific findings as to serious or significant harm within the meaning of the Act.
The Minister submitted that the statutory task was to consider the criteria in s 36(2) of the Act and reach a state of satisfaction as to whether to grant a protection visa (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [20] (SZMDS) and Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 at [34]).
In response to grounds three and four of the amended application for judicial review, the Minister submitted that the applicant was seeking impermissible merits review. The matters underlying these grounds did not demonstrate unreasonableness, illogicality or irrationality. The applicant’s submissions were no more than “emphatic disagreement” with the findings of the Tribunal (see SZMDS at [129] per Crennan and Bell JJ). It was submitted that the Tribunal understood the context in which the applicant arrived in Australia and correctly assessed whether the applicant was likely to suffer persecution or significant harm if returned to Malaysia (CB 109 [22]).
Counsel for the Minister submitted that the conclusion the applicant lived “fairly openly” as a lesbian in Malaysia was available on the applicant’s evidence and the findings of the Tribunal at [45], [49] and [56] of the Decision were consistent with the evidence and logical. The reasoning of the Tribunal was open on the evidence. Simply because reasonable minds may differ as to the findings available to the Tribunal, the Decision was not unreasonable, irrational or illogical (see SZMDS at [131]; ARG15 v Minister for Immigration and Border Protection (2015) 250 FCR 109; [2016] FCAFC 174 at [47] and Minister for Immigration and BorderProtection v MZZMX (2020) 280 FCR 1; [2020] FCAFC 175 at [23]-[27] (MZZMX)).
Further, the Tribunal did not find that the applicant would need to modify her behaviour or “live discretely” in order to avoid persecution or harm contrary to the findings in Appellant S395 at [55]–[56] and [82]–[83]. To the contrary, the Tribunal was satisfied that if the applicant was to return to Malaysia, she would not suffer persecution or significant harm if she continued to live as she had in the past and the applicant’s evidence was that she did not fear harm or discrimination except that people may look at her in a strange way. That was a subjective fear of disapproval but not persecution or harm. The Decision was not unreasonable.
The Minister relied on the succinct statements of principle in MZZMX at [23] and [25]. Differences of degree, impression and empirical judgment between the approach of the Tribunal as compared with the opinion of the Court undertaking judicial review do not establish illogicality or irrationality.
CONSIDERATION
In paragraphs [11] to [38] of the Decision, the Tribunal considered the applicant’s evidence in detail, including at [22] that the applicant came to Australia because she had problems with her family when they discovered her same sex relationship. The Tribunal also noted in [23] that, shortly before arriving in Australia, the applicant had been caught “red handed” with her partner of 15 years. The Tribunal also recorded the applicant’s evidence that she could return to Malaysia if she had to (CB 110 [26]). Further, that she would not face harm except from her family and brother-in-law who “disapprove” of her relationships. The Tribunal logically and reasonably concluded after considering the evidence that the applicant did not satisfy the criteria in s 36(2) of the Act because the applicant did not face a real chance of persecution or substantial harm.
It is not apparent from the Decision or the transcript of the hearing before the Tribunal that the Tribunal failed to consider the timing of the applicant’s arrival in Australia and the connection to the discovery of the applicant’s sexuality by her family. Whilst the decision to hide her sexuality from her family and the sudden revelation of her sexuality meant the applicant suffered disapproval from her family, those facts do not necessarily undermine the finding that the applicant lived a “fairly” open lesbian lifestyle in Malaysia. That finding was supported by other aspects of the applicant’s evidence including relationships with other friends and members of the LGBTI community. There was nothing inherently illogical or irrational about that finding.
Further, the finding that the applicant lived “fairly openly” was not inconsistent with the evidence that the applicant hid her sexuality from her family for a substantial time. It does not defy logic that the applicant hid her sexuality from her immediate family but lived “fairly openly” as a lesbian without persecution or risk of serious harm. The use of the words “fairly openly” must be construed in the context in which it was used by the Tribunal. It appears to be a statement that, whilst the applicant was not open about her relationship to her family, she was open to others including friends and before those “people would look at us in a strange way”. The expression cannot be interpreted with an “eye keenly attuned to a perception of error” (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The finding was not so lacking in a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach (see Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) FCR 21; [2022] FCAFC 3 at [34] per Allsop CJ, Besanko and O’Callaghan JJ).
In SZMDS, Crennan and Bell JJ said at [130]:
In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
The Decision reflects a proper consideration of the statutory requirements for the grant of a protection visa. The applicant’s evidence did not suggest that the applicant would be exposed to persecution or that she feared persecution, nor did she fear significant harm. The evidence of the applicant to the Tribunal (as recorded in the transcript) was that the applicant was able to live a life in Malaysia where her sexuality did not expose her to persecution or significant harm. In paragraph [56] of the Decision, the Tribunal said, “I find no reason to conclude she could not live away from family for financial or other reasons having achieved this in Malaysia in the past” (CB 138 [56]). It appears that the Tribunal was acting under a misunderstanding or erroneous assumption that the applicant had lived away from her family in Malaysia, which was not her evidence (A1, page 8, question 10; page 12 question 66 and page 13, question 69), however, the applicant’s evidence was that she could return to Malaysia and live with her partner (A1, page 13, question 71). The applicant stated that they would return and not tell her parents and “will live somewhere else” (A1, page 13, question 72). When asked “Were you able to live a relatively normal life in Malaysia?”, the applicants answer was “Yes, a normal life. There were no problems” (A1, page 17, question 93). The error or assumption in this regard was not one that rendered the Decision unreasonable, illogical or irrational. The error was not serious (see SZRKT at [112]). When viewed in context, this factual error or assumption was not enough to render the Decision as one which no rational or logical decision-maker could arrive at on the same evidence. Nor was there a failure to consider cogent or significant evidence.
In paragraph [56] of the Decision, the Tribunal found that the applicant had a network of friends and had ongoing employment in a factory where her sexuality has not appeared to be an issue. Counsel for the applicant submitted that this too was a significant factual error that was not available on the evidence and was unreasonable (CB 138 [56]). The Court does not agree. It was open to the Tribunal on the evidence to conclude that the applicant had a friendship group in Malaysia that accepted or were not critical of her sexuality. For the reason previously expressed, I do not consider that finding to be so contrary to the evidence to render the Decision unreasonable, illogical or irrational.
It is not the task of this Court to undertake a review of the merits of the Decision, and the weight to be given to the evidence is in the domain of the Tribunal (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per Kiefel, RD Nicholson and Downes JJ). Further, as was observed by the Court in MZZMX per Murphy, O’Callaghan and Anastassiou JJ at [27]:
Once it is established that the Tribunal’s factual finding was available on the evidence, further enquiry is not warranted.
The conclusion reached by the Tribunal in the Decision as to the applicant’s eligibility for protection was available on the evidence and not illogical, irrational or unreasonable (see SZMDS at [130] and MZZMX at [23]-[27]). The Decision reflects a logical chain of reasoning based on the evidence of the applicant as reflected in the transcript. Further, the Decision was not unreasonable or illogical because the Tribunal concluded that the applicant could modify her behaviour in the way that was dismissed by the Court in Appellant S395. The Tribunal did not find that the applicant could avoid persecution or significant harm if she modified her behaviour or concealed her sexuality. The Tribunal found that the applicant could return to Malaysia and live a lifestyle similar to that which she had before arriving in Australia and that there was no well-founded fear of persecution or a real risk of suffering significant harm. It reached those conclusions based on consideration of the applicant’s sworn evidence and the country information available.
The Decision is not unreasonable and there was no failure to consider cogent or significant evidence that resulted in a jurisdictional error. The amended application for judicial review is dismissed.
OTHER MATTERS
The Minister sought an order that the name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.
The Minister also seeks costs of and incidental to the proceeding fixed in the sum of $8,371.30 which is equal to the amount provided for in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) and is appropriate in the circumstances of this case.
ORDERS
The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
The name of the second respondent be amended to Administrative Review Tribunal.
The amended application for judicial review filed 31 October 2024 be dismissed.
The applicant pay the respondents costs of and incidental to the application fixed in the sum of $8,371.30.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 19 December 2024
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