GRP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2024] FedCFamC2G 927

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GRP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 927

File number:	MLG 3902 of 2018
Judgment of:	JUDGE FORBES
Date of judgment:	25 September 2024
Catchwords:	MIGRATION -  protection visa – application for judicial review of decision of Administrative Appeals Tribunal affirming refusal of visa – whether Tribunal failed to consider all of the applicant’s claims for protection – where applicant seeks protection as a vulnerable woman and single female without male protection – whether claim to fear sexual harassment made – whether claim clearly emerged or squarely raised on the material before the Tribunal – where multiple other claims made by applicant – where Tribunal would have to construct claim for the applicant – no error revealed
Legislation:	Migration Act 1958 (Cth) s 65, 414
Cases cited:	AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 COE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 669 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 Kasupene v Minister for Immigration & Citizenship [2008] FCA 1609 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Division:	Division 2 General Federal Law
Number of paragraphs:	75
Date of hearing:	20 December 2023
Place:	Melbourne
Counsel for the Applicants:	Mr Wong
Solicitor for the Applicants:	Victoria Legal Aid
Solicitor for the Respondents:	Mr Cunynghame; Sparke Helmore Lawyers

ORDERS

MLG 3902 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GRP18

First Applicant

GRQ18

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	25 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The First Respondent’s name be changed to “Minister for Immigration and Multicultural Affairs”.

2.The Applicants’ amended application for judicial review filed 20 November 2023 be dismissed.

3.The First Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $5,000.

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 FORBES

INTRODUCTION

1. In this matter, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 4 December 2018. The Tribunal affirmed a decision of a delegate of the Minister (the delegate) not to grant the applicants Protection (Class XA) visas under section 65 of the Migration Act 1958 (Cth) (the Act).

2. The amended application for review advances only one ground of review, being that the Tribunal failed to perform its statutory function by failing to consider all claims raised by the applicants. In particular, the applicant asserts that the Tribunal failed to consider a claim that the first applicant would face a real chance of serious harm or a real risk of significant harm in the form of sexual harassment if she was returned to Ethiopia.

3. For the reasons set out below, I have found that the Tribunal decision is not affected by jurisdictional error. Accordingly, the application should be dismissed.

   BACKGROUND

4. The applicants are a mother (the first applicant) and her minor son (the second applicant). They are citizens of the Federal Democratic Republic of Ethiopia who arrived in Australia on 11 April 2012 as dependents on their husband/father’s student visa. The first applicant separated from her husband in June 2013, and her husband returned to Ethiopia two months later.

5. The applicant lodged an application for a protection visa on 31 July 2013. Relevantly, amongst the claims advanced in support of the protection visa, the first applicant claimed to fear persecution on the basis of her membership of a particular social group, namely vulnerable women, single women without male protection and single mothers.

6. On 20 August 2015, a delegate of the Minister (delegate) refused to grant the applicant the visa. The delegate found that the applicant was not a credible witness and, while noting that the country information supported the existence of discrimination towards women, found that the conduct complained of would not amount to persecution. Having refused to grant the applicant a visa, the delegate also refused to grant the second applicant a visa as a member of the family unit.

   Tribunal decision

7. On 4 December 2018 the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision not to grant the first applicant a Protection (Class XA) visa.

8. From [43] to [67] of its reasons the Tribunal considered the applicant’s claims in relation to her race and ethnicity and her actual and imputed political opinion.

9. From [68] to [79] of the reasons, the Tribunal considered the applicant’s claims as a “single female, divorcee, woman without male protection [and] with a child”. In relation to these claims, the Tribunal found that if the applicant was to return to Ethiopia and live with her sister or mother she might face social stigma but would be able to find accommodation, or could live with her mother[1].

   [1] Tribunal’s reasons at [69]

10. The Tribunal accepted the applicant’s claim that she had been sexually assaulted in 2007 by soldiers at a check point. The Tribunal gave this claim some weight but ultimately did not find this fact in and of itself indicated a real chance or risk of the possibility of it occurring again[2].

    [2] Tribunal’s reasons at [70]

11. The Tribunal also found that the applicant could return to Adigrat “without facing social barriers or harm such as sexual assault that would amount to a real chance of harm or a real risk of significant harm”[3].

    [3] Tribunal’s reasons at [71]

12. The Tribunal put to the applicant during the hearing, and found, that she was not at risk of facing domestic violence as she is not currently in a relationship. Based on these circumstances, the Tribunal held that there was no risk in the reasonably foreseeable future of the applicant experiencing domestic violence[4].

    [4] Tribunal’s reasons at [72] – [73]

13. In conclusion, the Tribunal held at [74] that:

    “Considering the issues more broadly and collectively, being a single female without male protection and a divorcee with a child, and having reviewed the country information submitted by the applicant, I find that she would not face a real chance of serious harm or a real risk of significant harm.”

14. The Tribunal also considered the potential risk faced by the applicant as a failed asylum seeker, and considered the cumulative risk, given the totality of the factors and claims laid out by the applicant.

15. The Tribunal concluded at [90] that the applicant and her son are not people in respect of whom Australia has protection obligations, and cannot be granted protection visas.

    Application for Judicial Review

16. By an application filed on 21 December 2018 and amended on 20 November 2023, the applicant seeks judicial review of the Tribunal’s decision. As mentioned, the first applicant advances one ground of alleged error.

17. The applicants submit that the first applicant raised a claim before the Tribunal that she will face serious harm or significant harm in Ethiopia in the form of sexual harassment if she was returned to Ethiopia, on account of her profile as a woman in Ethiopia or as a single, divorced woman without male protection (sexual harassment claim).

18. The applicant submits that the sexual harassment claim was an integer of her claim to fear serious or significant harm on account of her membership of a particular social group. She contends that the Tribunal failed to consider and assess the sexual harassment claim, and thereby failed to perform its statutory function pursuant to s 414 of the Migration Act 1958 (Cth). The failure to consider this claim is said to constitute jurisdictional error.

    Issues to be determined

19. It appears to be common ground between the parties that the applicant did not expressly make or advance a claim that there was a real chance or real risk that she would face serious harm or significant harm as a result of sexual harassment in the event she was returned to Ethiopia.

20. In the absence of an express claim of sexual harassment, counsel for the applicant correctly identified the two key issues to be determined in this review.

21. The first question is whether the sexual harassment claim was the subject of a substantial, clearly articulated argument or was a claim which clearly emerged from, or was squarely raised by, the materials before the Tribunal.

22. Assuming that the sexual harassment claim was the subject of a substantial, clearly articulated argument or was a claim which clearly emerged from, or was squarely raised by, the materials before the Tribunal, the second question is whether the Tribunal discharged its statutory obligation to properly consider the claim.

23. The applicant contends, and I accept, that if the Court answers each of those questions in the affirmative, jurisdictional error will have been established and the matter should be remitted to the Tribunal to be re-heard and determined according to law.

    Legal principles

24. The foundation of the applicant’s argument is that to discharge its statutory task on review, the Tribunal must consider claims that are the subject of substantial, clearly articulated argument as well as claims that “clearly emerged” from or are “squarely raised” by the materials or are “plain on the face of the material before it”. The applicant submits that the Tribunal must consider such claims as the review process is inquisitorial, rather than adversarial.

25. In AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 (AYY17) (Collier, McKerracher and Banks-Smith JJ) the Full Court said from [17]:

    “[17] By s 473CC of the Migration Act, the IAA is required to “review” the decision referred to it pursuant to s 473CA. In performing its review the IAA is provided the material identified in s 473DB of the Migration Act.

    [18] It is common ground that nothing in the statutory constraints found within Pt 7AA of the Migration Act […] affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

    •the Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

    •the Tribunal is only required to consider such claims where they are either:

    (a)the subject of substantial clearly articulated argument, relying on established facts; or

    (b)clearly emerged from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).

    […]

    •As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

    (a)       such a finding is not to be made lightly (NABE at [68]);

    (b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

    (c)to clearly emerge from the materials the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovich J (at [37]-[38]). In SZUTM, Markovich J said:

    [37]     While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant.  A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

    [38]     Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”.  At [35], the primary judge found, relying on NABE and Dranichnikov that, as a threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

    (d)while there is no precise standard to determining whether an un-articulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kaspene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

    (e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum.  Consideration must be given to the way an applicant’s claims are presented over time.”

26. As a matter of principle, the Minister does not cavil with the submission that the Tribunal is required to consider all claims made by an applicant including those which were not expressly made but arise squarely on, or are apparent on the face of, the material before the Tribunal[5]. However, the Minister stresses that the applicant bears the burden of demonstrating, on the balance of probabilities, that the Tribunal did not consider a relevant claim[6].

    [5] NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 (NABE) at [58]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [13]

    [6] Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [50]-[53]

27. The central issue in dispute in these proceedings is whether the applicant can be said to have made the sexual harassment claim, such that there was an obligation on the part of the Tribunal to consider it.

28. The applicant submits that such a claim, whilst not made expressly, was nevertheless a substantially articulated claim or was a claim which clearly emerged from the materials before the Tribunal. The Minister, on the other hand, submits that no such claim was advanced or arose and, accordingly, there was no obligation on the Tribunal to consider and assess the claim for protection purposes.

    HEARING

29. The parties came before me on 20 December 2023 for a final hearing. Mr Wong of counsel appeared for the applicant and Mr Cunynghame, solicitor, appeared for the Minister. The parties relied on their written submissions and developed them orally at the hearing.

    Applicant’s submissions

30. As to whether the sexual harassment claim was the subject of a substantial, clearly articulated argument, the applicant drew the Court’s attention to the following matters.

31. First, in her written submissions to the Tribunal dated 20 June 2018, the applicant claimed that she will face serious harm or significant harm in Ethiopia on account of her membership of a particular social group, whether as a woman in Ethiopia or more specifically, as a single, divorced woman without male protection[7]. In those written submissions the applicant articulated her fear of persecution as follows:

    “We note the submission dated 17 July 2014 requests that [the applicant] be treated as a vulnerable person on account of her history of sexual assault.  Separately, the submission argues that [the applicant] is part of the particular social group of “vulnerable women” should she return to Ethiopia without male protection.  The Delegate’s assessment in this regard shows a clear misunderstanding of the facts and the law in relation to the convention ground of particular social group.  In our submission, [the applicant] is at risk should she return to Ethiopian on account of her gender and specifically, her status as a single, divorced woman without male protection.  This claim is supported by extensive country information as to the status of women in Ethiopia.”[8]

    [7] Court Book (CB) 269

    [8] CB 258

32. The written submissions also reference the DFAT Country Information Report for Ethiopia, which stated, inter alia:

    “3.55 DFAT assesses that women in Ethiopia face a high risk of domestic violence and sexual harassment. Women in Ethiopia also face moderate risk of rape and sexual assault, including spousal rape.”[9]

    [9] CB 270

33. Further, the applicant contends that she further supported her claim by referring to the US Department of State’s 2017 Report on Human Rights Practices and argued that gender-based violence and domestic violence remain widespread in Ethiopia and are widely accepted as a social norm. The applicant’s submissions quoted the report, which stated inter alia:

    “Sexual Harassment: Sexual harassment was widespread. The penal code prescribes penalties of 18 to 24 months imprisonment, but authorities generally did not enforce harassment laws.”[10]

    [10] CB 271

34. In her written submissions to the Tribunal the applicant argued that the DFAT Country Information Report and the US Department of State’s Report are “consistent with [her] claims that as a female, she is particularly vulnerable in Ethiopia”. The applicant also submitted to the Tribunal that:

    “It is submitted that the above information reflects cultural attitudes towards divorced and separated women and will result in [the applicant] being more vulnerable to harm should she now return to Ethiopia. We emphasise that as outlined in [the applicant’s] statement dated 22 April 2014, she was previously sexually assaulted in her home area and in our submission, this supports her claims as to the vulnerabilities of women generally and that she in particular would be vulnerable to being targeted should she return to Ethiopia.

    As outline[d] above, it is also submitted that [the applicant] would be unable to seek adequate protection from Ethiopian authorities for the harm that she is being threatened with.

    We submit that the abovementioned independent country information is indicative of a clear state tolerance of violence against women in Ethiopia and a systematic discriminatory implementation of the law. As such, the applicant's likely subjection to abuse without state protection is by reason of her membership of a particular social group/s described above.”[11]

    [11] CB 273

35. In her outline of submissions to the Court, the applicant impresses that the country information relied upon must be read in context, including by reference to the commentary in the legal submission which introduced the country information. So read, the applicants submit that the first applicant’s claim that there is a real chance or a real risk she will face serious harm or significant harm in the form of sexual harassment was the subject of a substantial, clearly articulated argument. The applicant contends that the sexual harassment claim was an integer of her claim that she would face serious harm on account of her membership of a particular social group.

1. In his oral submissions, counsel for the applicant submitted that it was central to the applicant’s claims for protection that she was a single woman with no male protection. She no longer had a husband, her father had been deported to Eritrea and her brother was in jail. Those established facts identified the applicant as a vulnerable woman for whom there was a real chance or real risk of serious or significant harm in the country. Counsel submitted that these established facts only reinforced the argument that the claim for protection from sexual harassment was the subject of a substantial, clearly articulated argument which had to be dealt with by the Tribunal.

2. The alternative proposition advanced by the applicant was that a claim of serious harm or significant harm in the form of sexual harassment clearly emerged from, or was squarely raised by, the materials before the Tribunal, such that the Tribunal was required to consider and address the claim. Citing AYY17 at [18], Counsel submitted that there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials, but the assessment of whether such a claim does so should not be made in a vacuum.

3. The applicant’s case, in essence, is that contextually the claim for protection from sexual harassment clearly emerges from the materials as a matter of common sense. The applicant relied upon the observations of Allsop J in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 where his Honour said at [15], inter alia:

   “[…] As the Full Court [in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263] said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.”

4. The applicant accepts that a finding of a claim on the face of the materials is not one which should be made lightly[12]. However, here the applicant submits that the sexual harassment claim is one which is based on the “established fact” of the applicant being a single vulnerable woman and clearly emerges from the materials referred to in her written submissions to the Tribunal. Identification of the claim is not one which requires constructive or creative activity by the Tribunal[13] - it is a claim which was laid out before the Tribunal by the applicants through their reliance upon specific passages in the DFAT Country Information Report and the US Department of State’s Report. The applicant submits that the fact that the Tribunal acknowledged those reports in both its hearing and its reasons for decision only serves to reinforce the submission that the applicant’s claim for protection from sexual harassment was apparent, clearly emerged from the materials or was squarely raised.

   [12] AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67] (Barker J)

   [13] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [58] (Black CJ, French and Selway JJ)

5. In written submissions the Minister argued that the applicant’s case must be held to a higher standard where the applicant is represented and that it should not be for the Tribunal to construct the applicant’s claims.

6. In COE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 669 (COE17), Justice Bromwich opined at [9] that:

   “First and foremost, there was no overture claim made of the kind that is now advanced in ground 1, as counsel for the appellant accepts.  It is not for this Court to ferret around and construct a claim when none has been made, or to isolate an issue that was not so readily apparent, especially when the appellant was represented by a migration agent who was also a legal practitioner; see the summary of principles about the duty to consider claims and issues arising from the material before the Authority in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18]; see also SZSHK v Minister for Immigration and Citizenship [2013] FCAFC 125.”

7. The applicant contested the Minister’s submission that a higher level of articulation of a claim was required by an applicant who is represented. The applicant submitted that COE17 cannot be taken to be a definitive statement of principle and referred to Kasupene v Minister for Immigration & Citizenship [2008] FCA 1609 at [21] which stated:

   “As a practical matter, a Court may be more willing to draw the line in favour of an unrepresented party than a party represented by counsel. Or, expressed differently, the issue may be more likely to arise in those cases where one party is not represented.” [italics added]

8. On the premise that the sexual harassment claim was substantially articulated or did clearly emerge from the materials before the Tribunal, the applicant submits that the Tribunal plainly failed in its statutory duty to properly consider the claim.

9. The applicant submits that the reasons of the Tribunal do not reveal any proper engagement with the sexual harassment claim or any intellectual process of consideration. Indeed, there was no mention at all of the sexual harassment claim in the Tribunal’s reasons. Whilst the absence of a mention of a claim does not in and of itself give rise to an inference that was not considered, the applicant submits that an inference of non-consideration can be drawn where the issue is significant, has been raised and it would have been dispositive to the applicant’s case (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47]).

10. The applicant also says that the nature of the sexual harassment claim is such that it cannot be taken to have been subsumed in other more general reasoning of the Tribunal. The Tribunal did deal with the applicant’s claim relating to the risk of harm from sexual assault, but it failed to deal with the risk of harm from sexual harassment which, according to the DFAT country information, is appreciably higher.

11. The applicant also says that the Tribunal’s reference to “other gender-based harm” should not be read as a generic expression which is broad enough to encompass the sexual harassment claim. Rather, in context, the expression “other gender-based harm” should be read as a reference to the applicant’s fear of harm from domestic violence which was identified and referred to elsewhere in the reasons.

12. As to the potential for a sexual harassment claim to be dispositive of a claim for protection, the applicant took the court to AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 (AGA16) at [42]-[46]. The applicant contends that AGA16 stands as authority for the proposition that sexual harassment can give rise to a serious risk of harm.

13. As to materiality, the applicant submits that having regard to her unique personal circumstances, including that she is a single woman without male protection and a past victim of sexual assault, an incident of sexual harassment might carry a greater risk of harm. In circumstances where the DFAT Report shows a “high” risk of sexual harassment, the applicant submits that if the sexual harassment claim had been considered by the Tribunal, there is a realistic possibility[14] that the review may have been decided differently.

    [14] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [2] (Kiefel CJ, Gageler, Keane, Gleeson JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]-[46] (Bell, Gageler, Keane JJ)

    Minister’s submissions

14. The Minister concedes that the Tribunal is required to consider all claims made by the applicant including those which, while not expressly made, arise squarely from are apparent on the face of the material before the Tribunal. However, the Minister impresses that the applicant bears the burden of demonstrating, on the balance of probabilities, that the Tribunal did not consider a relevant claim[15].

    [15] Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [50]-[53]

15. The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]-[63] dealt with the question of what claims must be dealt with by the Tribunal to complete the required task, even though a claim may not be expressly articulated. The issue of whether a claim was clearly articulated or clearly arises on the materials is one which depends on the circumstances. The particular facts, the structure and content of the application for protection and the manner in which the application is prosecuted through the migration process might all serve to inform a decision-maker as to whether a particular claim falls to be considered.

16. The Minister submits that the issue of whether such a claim was or was not made is not to be determined in a vacuum. On that point of principle, the parties are agreed. The Minister submits that the Court must have regard to the overall context of how the applicant framed her case for protection and how she advanced her claims from the outset and before the delegate and the Tribunal. Whether the applicant was or was not represented in that process is a relevant consideration[16].

    [16] COE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 669 at [9]

17. The Minister took the Court to a number of relevant background facts and circumstances which comprise the context in which it is said that the Court should determine whether the claim can be said to have arisen for consideration by the Tribunal.

18. The principal applicant and the child arrived in Australia as dependents on the husband’s sponsored student visa in April 2012. After the applicant’s separation from her husband, she applied for the protection visa on 31 July 2013.

19. In July 2014, approximately one year after she applied for the protection visa, the applicant sought assistance and representation from the Asylum Seeker Resource Centre, an established, experienced and well-regarded migration representative[17].

    [17] CB 50, Form 956

20. The protection visa application was accompanied by a statutory declaration made on 22 April 2014, prepared with the assistance of her representatives at the time. That 22-page statutory declaration sets out the applicants’ claims for protection in considerable and careful detail. On page 9 of the statutory declaration[18] the applicant makes reference to a past incident where she claims to have been threatened and sexually assaulted by two soldiers and then warned that she would be killed if she spoke to anyone about the event. At paragraph [42] of the statutory declaration the applicant deposes to a fear of her husband and expresses concern that it would be difficult to sustain herself as a single mother in Ethiopia. The statutory declaration otherwise contains no information which touches upon a claim to fear sexual harassment.

    [18] CB 62

21. On 17 July 2014 the applicant’s legal representative wrote to the Department and attached a detailed legal submission in support of her claim for protection. That submission, which runs to 28 pages, sets out the applicant’s claims but at no point is there any reference to a fear of harm from sexual harassment.

22. After the delegate’s decision refusing to grant the protection visa, the applicant applied for review of the decision to the Tribunal.[19] At that point the applicant was not represented.

    [19] CB 211

23. Subsequently, prior to the Tribunal hearing, Refugee Legal was appointed as the applicant’s representative[20]. As a result of that appointment, the Tribunal adjourned its hearing of the application until 27 June 2018 - providing adequate time for the representative to make submissions on behalf of the applicant.

    [20] CB 242-243

24. On 20 June 2018 the applicant’s representative sent to the Tribunal a detailed written submission[21] (with attachments) and a further statutory declaration by the applicant dated 18 June 2018. At point (g) in the outline of submissions, the applicant claims to fear persecution on account of, inter alia:

    “iv.     her membership of the particular social group, namely:

    a.        women/females in Ethiopia; and/or

    b.        women/females in rural Ethiopia; and/or

    c.        divorced women in Ethiopia; and/or

    d.        single mothers in Ethiopia; and/or

    e.        women in Ethiopian without mail protection; and/or

    f.        failed asylum seekers.”

    [21] CB 253

25. The Minister addressed the applicant’s submissions which relied upon the decision in AGA16. The Minister said that it cannot be understated that in that case the applicant did expressly make a claim of sexual harassment, a claim which was overlooked. The applicant’s claim of fearing harm from sexual harassment can be found at paragraphs [11] (a), (b) and (f) of the Court’s reasons. The Court was correct to find that those claims, expressly made, had been overlooked by the Tribunal giving rise to jurisdictional error.

26. However, in the present case, the Minister submits that the sexual harassment claim was never made expressly or by inference. Rather, the claim has now been constructed by seeking to import oblique references to country information concerning sexual harassment which were buried in the applicant’s submissions. The Minister submits that a finding of jurisdictional error requires the Court to “ferret around and construct a claim” that did not arise on the materials - the very thing the court cautioned against in COE17.

27. The Minister submits, correctly, that if the “sexual harassment” claim did not arise to be considered and determined by the Tribunal, the Tribunal cannot have fallen into jurisdictional error by failing to do so.

    CONSIDERATION

28. In my view, the judicial review application is a case of asking the tail to wag the dog. Here, the applicant relies upon country evidence which was provided in support of an articulated claim (fear of sexual assault and domestic violence as a vulnerable single women and single mother without male protection) to argue that the Court should have drawn from that material an inference that the applicant was relying upon it for another unarticulated claim (the sexual harassment claim). In other words, the applicant’s submission is that it should have been apparent to the Tribunal that the evidence supplied for one purpose was capable of supporting another claim, albeit not one which had been articulated by the applicant.

29. Consistent with the authorities, this issue cannot be approached in a vacuum and context is highly relevant. I agree with the Minister, that one must look at how the case was put by the applicant to the delegate and to the Tribunal.

30. I am not satisfied that the applicant expressly or by implication ever advanced a claim that she feared serious or significant harm from sexual harassment in Ethiopia. I can hardly think of a more straightforward claim which could have been expressed by the applicant or her representatives, particularly when possessed of country information which would have supported such a claim.

31. The claims advanced by the applicant before the Tribunal focused on her fears of harm from domestic violence and sexual abuse, in particular a repeat of the sexual assault to which she had been subjected on a previous occasion. Her claims were consistent from the start to the finish.

32. The country information was advanced in support of these nuanced and carefully crafted claims. The country information relied upon by the applicant was advanced in support of her claims relating to the incidence of domestic violence in Ethiopia and her fear of persecution from the risk of sexual assault, particularly having been the survivor of a previous incident.

33. Further, when the country information was put to the applicant in the course of the hearing, it was done so in the context of her domestic violence claim. When the applicant was asked to comment upon the country information, her response was confined to those issues. The applicant’s response which is recorded at [72] of the reasons reinforces that the discussion around the country information was focused on the fear of domestic violence and sexual assault, not some broader generalised fear that the applicant might be subjected to sexual harassment on return.

34. At no time during the process was any claim made of a fear of harm arising from sexual harassment. The mere fact that the incidence of sexual harassment in Ethiopia is referred to in part of the country information on which the applicant relied, does not elevate that reference to the status of a separately articulated claim.

35. In considering the context, it is also important to note that the applicant asserted a great number of claims, of which her gender was only one. Other claims relating to the applicant’s race and ethnicity and her actual and imputed political opinion were given much greater prominence in her written and oral submissions and, consequently, in the Tribunal’s reasons.

36. As previously stated, if commonsense prevails, one would have expected a legally-represented applicant to clearly identify, express and articulate a fear of harm from the risk of being subjected to sexual harassment. It is for the applicant to make and prosecute her claims for protection - it is not for the Tribunal to make those claims for her. If the fear of harm from sexual harassment was serious and substantive, the applicant could have guided the delegate and the Tribunal to the country information for that purpose.

37. The Minister rightly accepts that an established fear of harm on account of sexual harassment could give rise to an entitlement to a protection visa. However, this is not such a case. In my view the asserted sexual harassment claim was not clearly articulated, it is not readily apparent nor does it clearly emerge from the materials. The claim can only be constructed by fossicking through the materials that were before the Tribunal and pulling together threads in a way which would never have been apparent to the Tribunal, considering how the case for protection was presented.

38. The alleged claim was not overlooked by the Tribunal and no error has been established.

    DISPOSITION

39. For the reasons set out above, I have found that the applicants have not established the Tribunal decision is affected by jurisdictional error.

40. Accordingly, the application must be dismissed, and I will hear the parties on the question of costs.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.

Associate:

Dated:       25 September 2024