SZOYR v Minister for Immigration

[2020] FCCA 985

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZOYR & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 985

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal (AAT) – complementary protection visa application – where parties agreed the Refugee Review Tribunal failed to deal with separate claims in respect of Second and Third Applicants – where the matter was remitted by consent to AAT – whether  claim of traumatisation of Second and Third Applicants on account of female oppression in Lebanon is made – whether the Respondents are estopped from arguing that such a claim did not arise by the operation of consent orders – whether the consideration by the AAT of claims the subject of remittal was sufficient – no claim arises – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.438, 476

Cases cited:

Applicant WAEE v Minister for Home Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
Chamberlain v Deputy Commissioner ofTaxation [1988] HCA 21; (1988) 164 CLR 502
Isaacs v The Ocean Accident and Guarantee Corporation Ltd v Winslett [1958] S.R.(NSW) 69
Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235

First Applicant: SZOYR

Second Applicant:  SZOYS

Third Applicant:  BGF15

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

Second Respondent:  ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1206 of 2016

Judgment of: Judge Baird

Hearing date: 16 August 2019

Date of Last Submission: 16 August 2019

Delivered at: Sydney

Delivered on: 1 May 2020

REPRESENTATION

Counsel for the Applicants: Mr D Godwin of Counsel

Solicitors for the Applicants Mr Ali Taoubi of T& T Lawyers

Counsel for the Respondents: Mr N Swan of Counsel

Solicitors for the Respondents: Ms Monica Perotti of Sparke Helmore

ORDERS

1. AMENDS the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. DISMISSES the Amended Application dated 2 February 2019.

3. ORDERS that the Applicants’ pay the First Respondent’s costs fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG1206 of 2016

SZOYR

First Applicant

SZOYS
Second Applicant

BGF15
Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth), in which the Applicants seek judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (Second Tribunal), made on 11 April 2016.  The Second Tribunal affirmed a decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection (now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), made on 15 May 2014 (Delegate’s Decision) not to grant the Applicants Protection (Class XA) Visas.

2. The Second Tribunal was not satisfied that the First Applicant was divorced religiously or legally.  It did not accept her claim to be divorced, that she would be physically harmed or humiliated because of it or that the Second or Third Applicants would experience traumatic events as a result.  It concluded that the Applicants did not satisfy the criteria for the Visas.

Background

1. The First Applicant was born in Lebanon in 1988.  She arrived in Australia on 9 February 2008 with her then husband as the holder of a Sponsored Family Visitor (Subclass UL679) visa.  The Second and Third Applicants are the dependant daughters of the First Applicant, and were born in Australia in 2008 and 2011 respectively.

2. The First Applicant with her then husband first applied for protection visas on 24 June 2010, and included the Second Applicant as a dependent child (the Third Applicant was not yet born).  A delegate of the First Respondent refused that application on 18 October 2010, which decision was affirmed on review.  The First Applicant and Second Applicant then appealed to the Federal Magistrates Court.  That application was discontinued in 2011.  That first visa application is not the subject of the present proceeding.

3. Following the decision of the Full Court of the Federal Court of Australia in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, (2013) 212 FCR 235, the First Applicant made a second application for a protection visa on 28 January 2014, the application for the Visas relevant to this proceeding. In this application the Second and Third Applicants are included as persons seeking protection and who are members of the same family unit as the First Applicant. The First Applicant declared that she had her own claims for protection. Her daughters declared (by the First Applicant) that they did not have their own claims for protection. The First Applicant, accordingly, completed a Part C form, and on behalf of her daughters, completed a Part D form for each of them (Form 866D - Application for a member of the family unit … who does not have their own claim for protection, but is included in this application).  The application was completed with the assistance of their appointed migration agent.

4. As I have said at [1] above, by the Delegate’s decision dated 15 May 2014, the Delegate refused to grant the Applicants the Visas sought.

5. On 10 June 2014, the Applicants lodged an application to the Refugee Review Tribunal (First Tribunal) to review the Delegate’s decision.

6. By its decision made on 9 June 2015 (First Tribunal Decision), the First Tribunal affirmed the Delegate’s decision.  On 3 July 2015, the Applicants applied to the Federal Circuit Court for judicial review of the First Tribunal’s Decision.

Consent Order

1. On 4 September 2015, by consent, a judge of this Court quashed the First Tribunal Decision and remitted the application for review of the Delegate’s Decision to the Administrative Appeals Tribunal (that is, the Second Tribunal) to determine according to law.  Whilst the consent orders misstate the date of the First Tribunal Decision (as 9 July 2015, rather than 9 June 2015), and the date of the Delegate’s Decision (as 18 October 2010, rather than 15 May 2014), no mention of these errors was made before me.  I assume the errors were inadvertent typographical or clerical errors, and have concluded that they are not material.  In support, I note that the date stated as the date of the Delegate’s Decision is in fact the date of the decision of a delegate of the Minister in respect of the First Applicant’s first protection visa application (see above at [4]), which date was referred to in the First Tribunal Decision at [5] in describing the First Applicant’s visa applications history. 

2. The consent orders were accompanied by a “Statement accompanying consent orders” which stated as follows (without alteration):

   The First Respondent accepts that the Second Respondent failed to deal with a claim raised by the First Applicant that the Second and Third Applicants would be “traumatised” were they returned to Lebanon. The Second Respondent erroneously found that the Second and Third Applicant had made no claims of their own and considered only their risk of harm against the First Applicant’s specific claims to fear harm. In this regard, the Second Respondent did not properly consider the Second and Third Applicants’ claims to fear harm against the complementary protection criterion found in s.36(2)(aa) of the Migration Act 1958 (Cth), thereby committing jurisdictional error.

3. By its decision made 11 April 2016 (Second Tribunal Decision), the Second Tribunal affirmed the Delegate’s Decision.

4. By Application dated 16 May 2016, the Applicants commenced the present application for judicial review in this Court.  On 28 May 2018, I granted leave to the Applicants to rely on Amended Application dated 2 February 2018, prepared with the assistance of the Applicants’ counsel, Mr Godwin.  On the Applicants’ motion, I made orders adjourning the matter pending the determination of the appeal to the High Court of Australia from BEG15 v Minister for Immigration & Anor [2017] FCAFC 198; (2017) 253 FCR 36.

5. On 13 February 2019, the High Court published its reasons in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 264 CLR 421.

Applicants’ protection claims

1. The Applicants’ claims were set out in the First Applicant’s statement of claim made on behalf of herself and her two daughters attached to the Visa application.  Those claims, in summary, are:

   (a)the First Applicant is a national of Lebanon, born in 1988, and a Sunni Muslim, who came to Australia with her ex-husband on honeymoon in 2008;

   (b)she claimed to have been divorced from her (now) ex-husband on 30 June 2013 (at [5]);

   (c)she had a former boyfriend before she was married called [redacted - O] who, on learning of her marriage and that she had come to Australia, contacted her parents in Lebanon and threatened to kill her (at [10]);

   (d)her parents cautioned her against going back to Lebanon.  Since then, her father has passed away.  She has no brothers to protect her in Lebanon (at [11]);

   (e)“approximately four weeks ago [her] husband suddenly said to [her] he was leaving the house and he would not return.  Before that, [they] had arguments on daily basis on most things even on trivial things.” (at [12], subsequently amended);

   (f)if returned to Lebanon she would have many problems with her ex-husband’s family and with the conservative society.  They will blame her for the collapse of the marriage (at [18]);

   (g)the First Applicant’s ex-husband’s family would probably kill her because they believe she tarnished their family’s name (at [19]);

   (h)“also, the future of [the Second and Third Applicants] will be unsecured in Lebanon and they will find it very difficult if not impossible to get married because I [the First Applicant] am without a husband” (at [20]);

   (i)the First Applicant’s ex-husband’s family lives in the same village (it appears as the First Applicant’s mother), and her mother is extremely worried about the Applicants returning to Lebanon and believes they will face many problems there (at [21]);

   (j)there is a “big chance” that the First Applicant’s return would cause problems for the First Applicant’s mother and three sisters - her engaged sister would lose her fiancé due to her presence in Lebanon and the friction between the families (at [22]); her single sister would find it difficult to get married, and her married sister may be forced by her husband to cut contacts with her “because [she is] divorced” (at [23]); her mother is very worried because she is a widow and cannot endure the people talking about her and the family in general (at [24]); and the situation for the First Applicant is very difficult indeed, she is very distressed and sad that all these things happened to her (at [25]);

   (k)as at the date of the statement the First Applicant has “been in Australia for 5 years and [I] have got used to the Australian way of life where there’s the rule of law, democracy and women’s rights, which are very important and vital to me” (at [26]).

2. The First Applicant continued the Applicants’ claims in her statement of claim as follows (without alteration):

   [27]My daughters were born her and are getting used to Australia.  I want my daughters to grow up in Australia and not to experience the oppression of women that I have experienced in Lebanon.

   [28]It is well known that divorced women and their children in Lebanon face most frequently a traumatic experience.  Women often face fierce custody battles and serious financial problems if their husbands refuse to pay the alimony ordered by the court. 

   [29]The religious courts, generally headed and run by men, rarely consider the needs of women, and often decide and impose measures concerning children’s care without seeking out the opinion and consent of the mother.

   [30]In Lebanon, women face acute discrimination in matters of parental authority and child custody.  There’s sharp discrimination against women in these matters.

   [31]I come from a moderate family and I always believed in the rights of women to be free and independent.

   [32]People in the area where I come from in North Lebanon know each other and the news that I was divorced in Australia will be the talk of everyone causes me lot of trouble and an embarrassment for my extended family.  My daughters will also be taunted at school due to my divorce in Australia.

   [33]I will be harassed for being a divorced woman and I will feel vulnerable all the time.

   [34]Faced with all these problems I need your help because I fear for my life and I am very concerned for my daughter’s future without me, and strongly believe that if I stayed alive I and my daughters will have difficult life there.

   [35]Returning to Lebanon means I will be in great danger from my ex-husband’s immediate family.  They will accuse me of shaming him back home.

   [36]My two daughters [names redacted] are used to live in Australia. I don’t want them to go back to Lebanon where they will be traumatized for a long time.  Please give them the chance to grow up in this peaceful and secure country.

3. The Applicants’ claims were further addressed by the First Applicant in her interview before the Delegate, and hearings before the First Tribunal and before the Second Tribunal.  In response to concerns raised by the Delegate in the interview the First Applicant, through her representative, provided an amended English translation of her statement in which the First Applicant clarified her evidence about when she claimed her husband left her (see above, at [14(e)]), and the last time she saw him, and provided proof that she had applied via post to the Federal Circuit Court for divorce, and received a response from the Court advising that it had not been filed in the registry, identifying issues to be fixed.  The Applicants, otherwise, did not provide any written submission or supplementary statements.

Delegate’s Decision

1. The First Applicant attended an interview before the Delegate on 17 April 2014, with her authorised representative.  

2. The Delegate first summarised the First Applicant’s claims, recording that the First Applicant stated that she was religiously divorced from her husband in Australia under Islamic law, and that she also claims that as a divorced woman in Lebanon she will be faced with custody battles for her daughters from her ex-husband and his immediate family, and would be discriminated against in matters of parental authority and child custody.

3. The Delegate stated that at interview the [First] Applicant was asked to clarify the circumstances surrounding her divorce (see above at [16]).  The Delegate noted that the First Applicant listed the Second and Third Applicants as dependants in her Visa application and raised claims on their behalf in her statement of claim. 

4. The Delegate noted that the First Applicant however indicated at Part B of her Visa application that her daughters had no claims, and that she submitted a Part D for each of her daughters, which specifically related to persons who do not have their own claims for protection. 

5. The Delegate stated “When asked about this contradiction at her PV interview the [First] Applicant stated that she was not raising any claims in relation to her children, nor did her children have claims of their own” (Decision at p.6).

6. The Delegate found the First Applicant to be vague and ambiguous in her responses to questions regarding the process of her separation and divorce from her ex-husband and the arrangements in place regarding child custody and alimony.  The Delegate was not satisfied that the First Applicant was a divorced woman, and dismissed that claim in its entirety.  The Delegate found that the circumstances surrounding the First Applicant’s alleged divorce were not plausible, the Delegate was not able to verify her divorce documents, and the Delegate’s enquiries with the court revealed that the First Applicant’s claims that the Federal Court (sic) had refused her divorce application were contradicted.  The Delegate was not satisfied the First Applicant has custody issues concerning her daughters and also dismissed that claim in its entirety.

7. In addition, the Delegate found that the First Applicant had not shamed either her or her ex-husband’s families and dismissed that claim in its entirely, stating that it follows that there is no basis for her claim that she will be harmed for those reasons.  The Delegate rejected the [First] Applicant’s material claims in their entirety.

8. The Delegate observed that no additional claims other than those discussed above had been advanced by the First Applicant or her representative.  The Delegate concluded the Delegate was not satisfied that the First Applicant is a person in respect of whom Australia has protection obligations, and accordingly refused to grant her the Visa.  As the Delegate refused to grant a Visa to the First Applicant, the Delegate also refused to grant a Visa to each of the Second and Third Applicants, “who are members of the family unit included in the application”.

First Tribunal’s decision

1. As I have stated above, the Applicants applied to the First Tribunal for review of the Delegate’s Decision.  The First Applicant appeared before the First Tribunal on 14 May 2015, and gave evidence with the assistance of an interpreter.  The First Applicant’s then current migration agent attended the hearing.

2. In the First Tribunal Decision, the First Tribunal first set out the Applicants’ migration history.  It noted from that history certain inconsistencies in the First Applicant’s claims as to when, and the circumstances in which, she had separated from her husband.  It recorded that in the Visa application lodged by the First Applicant, the Second and Third Applicants were included as dependents with no claims of their own (at [9]).

3. Applying the reasoning in SZGIZ the First Tribunal found that the Tribunal did not have power to consider the criterion in s.36(2)(a) of the Act in relation to the First and Second Applicants, and proceeded on the basis that it can only consider their claims under the provisions in s.36(2)(aa) of the Act.  At [12], the Tribunal observed that the Third Applicant was not born at the time of the first protection visa application, and potentially any claims she made could be assessed under both the Refugee and Complementary protection criteria, however, the Third Applicant makes no claims of her own to protection, and she relies on membership of the First Applicant’s family unit for the grant of the Visa.

4. The First Tribunal recorded that in response to being asked whether she had any other fears about returning to Lebanon, the First Applicant stated that she was scared her former husband might take custody of the Second and Third Applicants.  When asked why he would do that given that he had made no attempt to see them in Australia and apparently had no interest in them, the First Applicant repeated that in Lebanon the law is on his side.

5. At [37], the First Tribunal formed “a very unfavourable view” of the First Applicant’s credibility.  It observed that the First Applicant provided substantially inconsistent and contradictory evidence at different times.  The Tribunal overall considered that the claims and evidence presented by the First Applicant were highly unreliable.  The First Tribunal was not satisfied that the First Applicant genuinely feared harm of any kind, or that there was a real risk that she would face harm of any kind upon her return to Lebanon.

1. At [47], the First Tribunal found that the First Applicant provided “extremely unsatisfactory evidence about the marriage breakdown”.  It found the First Applicant’s claim that her husband would seek custody of the Second and Third Applicants if returned to Lebanon inconsistent with her evidence that her ex-husband made no attempts to see the Second and Third Applicants in Australia.

2. Overall, on the basis of the manifold deficiencies in her evidence, the First Tribunal did not accept that the First Applicant had a relationship with O prior to her marriage, that she is at risk of harm of any kind as a consequence of that relationship – either from O, or from her former husband as a result of his jealousy and as a consequence of the resulting breakdown of their marriage.  It did not accept that the First Applicant’s marriage had broken down, and therefore did not accept that she faces harm of any kind from her own family or that of her former husband as a consequence of being a divorced woman (at [48]-[49]).

3. At [50], the First Tribunal concluded that it did not accept that the First Applicant faces significant harm, saying;

   “For the reasons set out above, I do not accept that the first named applicant faces significant harm for the reasons claimed on return to Lebanon.” 

   The First Tribunal continued:

   Her daughters, the first and second named applicants, have made no claims of their own.  To the extent that the first named applicant has indicated that they would face harm from O in Lebanon, this is predicated on acceptance of her claims.  As I have accepted that there is no real risk that the first named applicant faces harm of any kind from O, it follows that they also do not.

4. The First Tribunal was not satisfied that any of the Applicants is a person in respect of whom Australia has protection obligations.  Therefore they do not satisfy the criterion set out in s.36(2)(a) or (aa) of the Act for a protection visa.  The First Tribunal affirmed the Delegate’s Decision.

Proceeding before the Second Tribunal

1. Following upon the consent orders of the Court made 4 September 2015, by letter dated 8 September 2015 to the Applicants’ authorised representative, the Second Tribunal informed the Applicants that the Court had remitted the application for review to the Second Tribunal for reconsideration and that their case would be reallocated to a member of the Tribunal.

2. On 18 October 2015, the First Applicant informed the Second Tribunal that she had appointed a new migration agent and cancelled her previous authorised representative.

3. By letter dated 13 January 2016 to the substituted migration agent, the Second Tribunal informed the Applicants “you should provide a written submission setting out all the claims made and maintained by the applicants by 9 February 2016.  The submission should be accompanied by a signed declaration from the applicants that the submission has been read and explained to them and that it accurately and completely presents their claims.”  In a further letter of the same date, the Second Tribunal invited the Applicants to appear before the Tribunal to give evidence and present arguments at a hearing on 16 February 2016.  No submission or signed declaration was provided to the Second Tribunal.

4. On 3 February 2016, the Second Tribunal adjourned the hearing to 7 March 2016 due to circumstances beyond the Tribunal’s control as the Tribunal member was unable to conduct the hearing on 16 February 2016.  By letter dated 17 February 2016, the Second Tribunal further adjourned the hearing date to 9 March 2016.

5. By email on 7 March 2016, the Applicants’ migration agent informed the Second Tribunal that the First Applicant would be unable to attend the hearing due to health reasons, attached a medical certificate, and requested an adjournment of the hearing.  There was no proposal in the cover email or medical certificate as to the duration of any adjournment.

6. By letter dated 8 March 2016, under cover of letter to the migration agent, the Second Tribunal informed the Applicants that the Tribunal member had decided not to postpone the hearing, and “having viewed the Medical certificate, the Tribunal Member is happy to offer a telephone hearing to the applicant”.

7. That same day the Applicants’ authorised representative sent a response to the hearing invitation, indicating acceptance of the offer for a telephone hearing, and, by ticking the relevant boxes, that each Applicant would take part in the telephone hearing, that the authorised representative would be attending, and that an Arabic interpreter was required.  The authorised representative provided a contact mobile number, and signed the form on behalf of the Applicants.  It appears from the hearing record that the mobile number provided was that of the First Applicant.

8. On 9 March 2016, the First Applicant attended the hearing before the Second Tribunal by telephone, assisted by an interpreter by telephone.  Whilst a terrestrial telephone number is listed on the hearing record for the representative, there is a notation on the hearing record that he was not present at the hearing.

9. By email communication post-hearing, the authorised representative wrote to the Tribunal referring to the phone interview and “attached documentation relevant to my client’s divorce”.  The Second Tribunal noted at [40] of the decision that the First Applicant was given the opportunity to provide a statutory declaration from the sheikh claimed to have conducted the divorce, and contact details, but that all that was provided was simply another copy of the original letter (regarding the divorce).

Second Tribunal’s decision

1. At [3] of the Second Tribunal Decision, the Second Tribunal stated:

   The matter was remitted to the Tribunal by the Federal Circuit Court because it was found that the tribunal failed to deal with a claim that the second- and third-named applicants would be traumatised were they returned to Lebanon.

2. The Second Tribunal set out the First Applicants’ claims and evidence at [5] to [9].  At [6], it recorded the First Applicant’s claim of her ex‑boyfriend O’s calls to her parents threatening to kill her.  At [7], the Second Tribunal recorded her claim that if she returned to Lebanon she would have problems with her [ex‑husband’s] family because they would blame her; the family would probably kill her, and that the Second and Third Applicants would find it difficult to get married because the First Applicant had no husband.  At [8], it recorded that the First Applicant claimed divorced women and their children face traumatic experiences in Lebanon, such as fierce custody battles and serious financial problems if the husband does not pay the alimony; the religious courts often decide on the children’s care without seeking the opinion of the mother, and at [9], it recorded that the First Applicant claimed that as a divorced woman she would be harassed in Lebanon and she would feel vulnerable.

3. At [10], the Second Tribunal noted that it had advised the First Applicant that her postponement request had given no indication as to when she could attend a hearing, and that the Tribunal had attempted to contact the medical professionals on the numbers she had provided but that neither was answered.  She was asked whether she was able to attend the hearing by phone, and she confirmed she was.  She was also asked whether her children had claims separate to her own, and she claimed that they did not.

4. At [11], the Second Tribunal stated (about the First Applicant) that:

   She claimed that if she returned to Lebanon she had no rights as a woman.  Asked to be specific regarding what harm she claimed, she claimed that she would not have custody of her children and was scared that the family of her ex‑husband and community would either kill her or waste her life. …

5. The Second Tribunal recorded (at [13]) that the First Applicant reiterated that a member of her or her former husband’s family could kill her because she was divorced and this would bring shame on the family,  If not killed she would be insulted and humiliated.  The other claim was that the father or the father’s family would be granted custody.

6. The Second Tribunal asked the First Applicant why she could not move away from her village to other parts of Lebanon given that she had claimed her cousin had done the same thing. She claimed she would be harassed by men and women in any village she went to. Asked about moving to another city she claimed that she couldn’t manage in a big city and couldn’t work: at [27].

7. At [28], the Tribunal noted the First Applicant claimed that the situation in Beirut was difficult because of the conflict within the government and that the Applicants would not be able to live because there was no government and that she would have no rights.  In response to the Tribunal’s question how she was able to survive in Australia with no work or education and she would have family to help in Lebanon, the First Applicant stated that at least she knew her daughters were safe in Australia.

8. The Second Tribunal found that the First Applicant’s evidence regarding her claims lacked credibility. It did not find her to be a reliable or credible witness. The Tribunal referred to her claimed medical conditions, the unsuccessful attempts to contact the doctor who provided the medical certificate, the lack of history of ailments on file, the two breaks the First Applicant was afforded during the hearing, and her agreement that she was capable of attending the hearing. The First Applicant was offered the opportunity to provide evidence post‑hearing of her claimed attendance on a therapist, but failed to do so: at [36].

9. The Second Tribunal was not satisfied that the First Applicant is divorced religiously or legally: at [38].

10. The Second Tribunal stated at [43] that “because I do not accept that [the First Applicant] is not (sic) divorced” (I note typographical error – the text should read that she is divorced), it followed that she would not lose custody of the children and would not be targeted or humiliated by her ex-husband’s or her family, or the community because she was a divorcee.  The Second Tribunal continued: “It also follows that the second- and third-named applicants would not face traumatic experiences in Lebanon.”  It observed that for someone who claimed to be divorced and to risk losing custody of her children she didn’t have much knowledge of Lebanese custody laws, which it is reasonable to think she would have paid close attention to.  Even if she may have found the research difficult, she was staying with relatives who could easily have assisted her with it.  In the following paragraphs the Tribunal then set out other reasons that it did not accept the First Applicant’s claim to be divorced.

11. At [48], under the heading ‘Complementary Protection’ the Second Tribunal found that:

    Because I do not accept that the [First] applicant has been divorced from her husband, that she would be physically harmed or humiliated in Lebanon because of it or that the second- and third-named applicants would experience traumatic events as a result, that her husband has threatened to [sic] with physical harm or that a former boyfriend in Lebanon called [redacted ‑O] threatened to kill her, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

12. The Second Tribunal, therefore (at [49]) did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Lebanon, there is a real risk that she will suffer significant harm.  At [50] it concluded that it was not satisfied that any of the Applicants is a person in respect of whom Australia has protection obligations, and stated that: “As [the Applicants] do not satisfy the criteria for a protection visa, they cannot be granted the [V]isa”.

13. The Second Tribunal affirmed the decision not to grant the Applicants protection Visas.

Ground of review

1. The Amended Application dated 2 February 2018 contained 8 grounds of review.  Following the decision of the High Court in SZMTA, the Applicants did not press grounds 1 to 7 at hearing.

2. The remaining ground, Ground 8, is as follows (without alteration):

   8.The Tribunal failed to complete the exercise of its jurisdiction as it failed to consider the first applicant’s claim that the second and third applicants would experience traumatization or other harm as a result of the oppressive way women were treated in Lebanon.

Proceeding in this Court

1. On 16 August 2019, I heard the Amended Application.  Before me, Mr Godwin of counsel appeared for the Applicants and Mr Swan of counsel for the Minister.

The Applicants’ oral submissions

1. In his outline of written submissions Mr Godwin summarised Ground 8 as follows: the Second Tribunal at [48] confined its consideration of the daughters’ claims to what treatment they may receive as children of a divorced couple in Lebanon, however, the claim made by the First Applicant in her statement was broader than that considered by the Tribunal. The claim included traumatisation or other harm as a result of the oppressive way women are treated in Lebanon. The Applicants contend that this claim is made by the First Applicant in her statement at [26], [27], and [36] (see above at [14(k)], [15]). The Tribunal has not considered all the applicant’s claims and thus it has committed a jurisdictional error.

2. Mr Godwin referred to the Tribunal’s non-acceptance at [43] of the First Applicant’s claim to be divorced (see above at [52]), and the same reasoning applied at [48] in relation to complementary protection (see above at [53]), and submitted that the Tribunal did not go beyond traumatisation that might be caused as a child of a divorced parent. 

3. Relying on the statement of principle in Applicant WAEE v Minister for Home Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, at [47], that:

   It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. … ,

   Mr Godwin submitted that the factual premise of the divorce having been rejected, the daughters’ claim of traumatisation as children of a divorced woman was thereby discharged, and there was no need for the First Tribunal to make findings relating to that claim.  Because that Tribunal rejected the divorce claim, there could have been no jurisdictional error by that Tribunal in not dealing with the children’s traumatisation in relation to divorce.  Therefore, the consent order must have related to a claim of traumatisation that went beyond being the children of a divorced woman.  That claim of traumatisation of the Second and Third Applicants related to the way women are treated in Lebanon.  That must be the factual basis of the consent orders. 

4. Mr Godwin submitted that the Minister, having consented to the consent orders, is now estopped from arguing that there is no clearly arising claim beyond the divorce claim: see Chamberlain v Deputy Commissioner of Taxation [1988] 164 CLR 502, at p.508 per Deane, Toohey and Gaudron JJ that where orders are entered by consent, “the principles of res judicata holds good in such a case”.

5. Relying on Isaacs v The Ocean Accident and Guarantee Corporation Ltd & Winslett [1958] SR(NSW) 69, at p.75, Mr Godwin next submitted that the statement accompanying the consent orders (set out at [10] above) is sufficient, and admissible, to inform this Court as to the factual issues determined by those consent orders.

6. Thirdly, in relation to issue estoppel as an aspect of res judicata, Mr Godwin referred to Jackson v Goldsmith (1950) 81 CLR 446, and drew the Court’s attention to statements there made by Williams J and by Fullagar J. Williams J at p.460 (citing Everest and Strode), observed that:

   A party is precluded from contending the contrary of any precise point which, having been once distinctly put in issue, has been solemnly found against him.  Though the objects of the first and second actions are different; the finding on a matter which came directly (not collaterally or incidentally) in issue in the first action is conclusive in a second action between the same parties and their privies.  

   Fullagar J at p.467, stated that:

   On the other hand, if A sues B to judgment and in subsequent proceedings between them a plea of issue estoppel is raised, the plea may succeed although the causes of action in the two cases are entirely different.  The question will be whether an issue of fact or law which is raised in the later proceedings was an issue of fact or law which was also raised in the earlier proceedings and therein determined.

7. Mr Godwin submitted that issue estoppel runs in the present case because, although this proceeding relates to a different Tribunal decision to the Tribunal decision to which the consent orders related, the factual fabric in both decisions is the same, it is the same claim to protection, the same Visa application, and the same decision of the Delegate. 

The Minister’s submissions

1. Mr Swan, counsel for the Minister, submitted in answer:

   (a)first, the Applicants never made the claim now alleged to have been made, and accordingly, the Second Tribunal was under no obligation to consider it; and

   (b)secondly, if the Court was of the view that the consent order does show such a claim was made, the First Applicant’s subsequent conduct was such that any such claim was abandoned. 

2. Mr Swan submitted that the statements of the Full Court of the Federal Court of Australia in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503, were apposite: at [18(e)] that, “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”, and at [30] that in circumstances where an applicant is represented by a migration agent before the delegate and before the [tribunal] it is more difficult to persuade the Court an articulated claim has clearly emerged from the materials.

3. Mr Swan drew attention to the fact that the Visa application was prepared with the assistance of a migration agent, and that the Applicants were represented throughout the application and review process.  The First Applicant completed Part D forms for her daughters, which related to members of a family group who do not have their own claims for protection. 

4. Even if a general claim of traumatisation of the Second and Third Applicants was made, it was later abandoned by the First Applicant at the Second Tribunal hearing when she claimed that her children did not have separate claims of their own (see above at [45]). 

5. Mr Swan submitted that from the outset, the application for the Visas was put forward on the basis that the claims for protection were made by the mother, and that no separate claims were made by the daughters.  In her statement of claim, the First Applicant claimed to fear harm (a) from her ex‑husband and his family, and (b) arising from her status as a divorced woman.  Read in context, the First Applicant’s claims throughout her statement are tied to the divorce issue. 

6. Counsel referred to [27] of the statement of claim, and submitted that it is not a general claim to fear harm because of the way women are treated generally; there are simply no details provided to support a general claim of female oppression, which strongly suggests that no such claim was made as is now alleged.  In context, the reference to the oppression of women is referring to mistreatment of women who are divorced.  This is clearly shown by what follows immediately thereafter at [28] and following.  In such context the reference to the daughters in [36], and everything said about the daughters, is linked to the First Applicant’s fear from the ex‑husband, and a fear of the way divorced women are treated in Lebanon.

1. Mr Swan drew attention to the First Applicant’s statement when asked by the Delegate, that she was not raising any claims in relation to her children, nor did they have claims of their own. 

2. As to the consent orders, whilst the orders say that the First Tribunal did not properly consider the Second and Third Applicants’ claims to fear harm against the complementary protection criteria, the order does not establish as a fact that the claim now contended was in fact a claim made by the Applicants.

3. Mr Swan drew attention to the First Applicant’s conduct during the course of the remittal – (a) the Second Tribunal’s invitation to provide a submission setting out the claims pressed which was not taken up, (b) that she squarely stated at the hearing that the children did not have claims of their own; and (c) as shown by the decision at [11] and [13], when asked to say specifically what she was talking about, the First Applicant reverted to the issue of her divorce, her ex‑husband’s family and what will happen to her because she has been divorced.  That issue has been dealt with properly because she was not divorced.

Consideration

1. It is uncontroversial that the Second Tribunal confined its consideration of the Second and Third Applicants’ claims to claims to what treatment they may receive as children of a divorced woman in Lebanon: see decision at [43] and [48], referred to in these reasons above at [51]‑[53].  It is not in dispute that the Second Tribunal did not address any claim by the First Applicant that the Second and Third Applicants would experience traumatisation or other harm as a result of the oppressive way women were treated in Lebanon, more broadly than as a consequence of being the children of a divorcee (that is, the Ground 8 claim).

2. In Isaacs (see above at [63]), their Honours Street CJ, and Roper CJ in Eq., at p.75 cautioned that “a judgment operates by way of estoppel only as to those matters which are necessarily decided by it.  … In the case of a consent judgment, the court will closely examine all such evidence, if any, as is available and admissible, and by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed or necessarily involved in the actual decision assented to.  … To determine, therefore, what is necessarily decided by a judgment, it is proper and essential to examine the record of the proceedings.”

3. As the Full Court articulated in AYY17, in order to determine whether the claim now contended for clearly emerges from the materials, it is relevant to consider the way that the Applicants’ claims are presented over time, and in context, and not assess the matter in a vacuum. 

4. I have described the Visa application at [5] above. The First Applicant completed at Part B, and completed a Part D for each of her daughters. They did not there make claims of their own.

5. Mr Godwin says that the claim of traumatisation or other harm because of the way women in Lebanon are treated – the Ground 8 claim –- is articulated in paragraphs [26], [27], and [36] of the First Applicant’s statement of claim.  I accept Mr Swan’s submission that those paragraphs of the statement of claim must be read in context, and having regard to the whole of the statement of claim.

6. I have set out the Applicants’ claims as made by the First Applicant in her statement of claim at [14] and [15] of these reasons. 

7. The First Applicant’s statements of her views of Australian society in [26] of her statement of claim contrast the situation the First Applicant fears for herself and her daughters on returning to Lebanon as a divorced woman and children of a divorced woman that she has described in the preceding paragraphs – commencing at [18] with her identification of her ex‑husband’s family and conservative society’s blaming her for the collapse of the marriage, through the problems she identifies in [19], [20] (that it will be very difficult if not impossible for her daughters to get married), [21], [22], [23], and [24], resulting from the consequences of the collapse of her marriage, her status in Lebanon as a divorced woman, and societal disapproval and gossip, and culminating in her emotional state under the weight of this disapproval, shame and shunning, expressed in [25].

8. Viewed in context, the description in [26] of what the First Applicant has experienced in Australia, and the desire for the life she wants for her daughters expressed in [27], provides her contrast to the life she perceives awaits them in Lebanon as a divorcee, and children of a divorcee.

9. The reference in [27] to the oppression the First Applicant has experienced, read in the context of the preceding paragraphs, is the fear of what her ex‑husband and his family are going to do to her on return to Lebanon, and what other people do to her family in Lebanon, and will do to her and her children in Lebanon because she is divorced.

10. In context, the reference by the First Applicant to the oppression of women is referring to mistreatment of women who are divorced.  I consider that the claim at [27] is not a claim to fear harm because of the way women are treated generally.  I accept Mr Swan’s submission that there are simply no details provided to support a general claim of female oppression, as now contended by Ground 8.

11. What follows immediately thereafter at [28] and following links the key phrase “traumatic experience” directly to the experiences of divorced women and children.  The paragraphs each link back to the First Applicant’s divorce, and consequences of divorce for women and their children in Lebanon and in Lebanese society, such as obtaining parenting orders (at [29]), battles for rights to make decisions for the children and custody, and discrimination against women in these matters (at [30], and in contrast to the equality of her family’s moderation described at [31]), and embarrassment and harassment consequent upon divorce (at [32]‑[33]). 

12. At [34], the First Applicant returns to her claims of physical harm (including that she will be killed) from her ex-boyfriend O, and her ex‑husband’s family, and leaving her daughters’ orphans, before reiterating at [35] the dangers she will face from her ex-husband’s family should she be returned to Lebanon.  The reference to the daughters in [36], and everything said about the daughters and her fears for her daughters is linked to the First Applicant’s fear of harm from the ex‑husband, and a fear of the way divorced women and their children are treated in Lebanon.

13. At the interview before the Delegate, as described in the Delegate’s Decision, the First Applicant did not express any views about the treatment of women in Lebanon separate from her concerns as to the consequences of being a divorced woman.

14. The consent orders direct attention to the findings of the First Tribunal and its conclusions at [50]. It is notable that the statement accompanying the consent orders is limited to the claims of the daughters, there is no indication that the First Applicant’s claims concerning herself were not properly addressed.

15. The accompanying statement states, contrary to the express disclaimer by the First Applicant in the interview before the Delegate (see above, at [21]), and contrary to the completion of the Visa application Part B, and Part D forms, that the First Tribunal was in error when it found that the Second and Third Applicant had made no claims of their own and considered only their risk of harm against the First Applicant’s specific claims to fear harm.

16. As I have set out above (at [26]-[33]), the First Tribunal made findings having considered the First Applicant’s claims as to the risk of harm as a consequence of her relationship with O, from her ex-husband because of that relationship, from her husband because of the breakdown of her marriage, from his family or her own as a consequence (at [48], see above at [31]).  The First Tribunal did not accept that the First Applicant’s marriage had broken down.

17. The First Tribunal at [50] set out its conclusions addressing both the First Applicant’s divorce related claims, and her claims concerning harm faced from O (see above at [32]).  Read as a whole, whilst the First Tribunal there expressly referred to the First Applicant’s concern that the daughters’ would face harm in Lebanon from O further  to the First Applicant’s claim to fear harm from O, it is apparent that the Tribunal did not make any such statement in relation to the daughters’ claims (or fears that her daughters would experience harm) as a consequence of the First Applicant’s claimed divorce.

18. I accept Mr Godwin’s contention that the consent order related to a separate claim of traumatisation affecting the Second and Third Applicants.  However, I do not consider it follows from the statement accompanying the consent order that the daughters’ separate claims to complementary protection are not claims concerning their fear of traumatisation or other harm as children of a divorced woman, that is, I do not consider that it follows from the consent order and accompanying statement that the daughters have a clearly arising claim beyond their divorce related claim to fear harm. 

19. Rather, the identified error of the First Tribunal was in not considering their separate claims as children of a divorced woman – and, specifically, that the Tribunal did not, as a result of its rejection of the factual basis of the First Applicant’s claim to be divorced, address whether or not it followed that it would not accept the children’s claim (articulated by their mother) to be subject to trauma or other harm as children of a divorced woman.

20. I do not consider that the First Tribunal’s non acceptance of the claims of the First Applicant that her marriage had broken down, and faced harm as a consequence of being a divorced woman (at [48]-[49]), was a finding of such generality that it subsumed the separate claims of the daughters of harm likely to be suffered by them as children of a divorcee, such that there was no need for the First Tribunal to address the Second and Third Applicants’ own claims to that effect.

21. I consider that the statement accompanying the consent orders is directed to the First Tribunal’s statement in the second sentence of [50] that the daughters made no claims of their own. The consent orders draw attention to the lacunae of the First Tribunal in [50], after addressing the First Applicant’s claims of harm as a divorced woman, in then failing to address the daughters’ claims to fear harm as children of a divorced woman, but rather dismissing the Second and Third Applicants as not making claims of their own. This stands in contrast to the First Tribunal’s express consideration of the fear that the daughters would face harm from O as a consequence of the First Applicant’s claim to fear harm from O: see in the third and fourth sentences in [50].

22. It follows that I do not accept that the consent orders must be read as the Applicants’ counsel contends - as relating to a claim (the Ground 8 claim) that the Second and Third Applicants had that the Court agreed was not dealt with by the First Tribunal: a further, separate claim, not arising from the factual premise of their mother’s divorce. 

23. It further follows that I reject the submission that the Minister is estopped from arguing that there is no clearly arising claim beyond the claims relating to the divorce, or otherwise contending that the claims raised by the Applicants are limited to claims of harm as a divorced woman and children of a divorcee, and do not encompass the Ground 8 claim.

24. I return to the First Applicant’s statement of claim, which I have considered above at [81] – [86].  Having regard to paragraphs [26], [27] and [36] in context in the statement, I conclude that no Ground 8 claim is made by either or both the Second and Third Applicants, nor is such a claim is raised by the First Applicant that the Second and Third Applicants would experience traumatisation or other harm as a result of the oppressive way women were treated in Lebanon, broader than as children of a divorced woman.  There is no clearly arising claim as contended by the Applicants’ in this proceeding.

25. The First Applicant’s conduct on the Applicants’ behalf once the Visa application was remitted to the Second Tribunal does not expand their claims to encompass the Ground 8 claim.  The Applicants were represented at that time and continued to be represented up to, and after the hearing.  Given the consent orders, and that she had the assistance of a migration representative it is reasonable to infer that the First Applicant would be alive to the issue of what claims her daughters thereafter maintained.

26. The Applicants’ did not avail themselves of the invitation proffered by the Second Tribunal to provide submissions and signed declaration.  Whilst the First Applicant appeared at the hearing before the Second Tribunal without her migration agent present, the Applicants continued to have the benefit of their authorised representative in corresponding with the Tribunal after the hearing and providing documents (see above at [42]), and the First Applicant was given, but did not avail herself of, the opportunity post-hearing to provide certain evidence (see above at [50], decision at [36]). 

27. Given my conclusion that there is no articulated claim (Ground 8) as contended for by the Applicants, no question for determination arises whether the First Applicant abandoned a claim of harm of the Second and Third Applicants at the Second Tribunal hearing when the First Applicant noted that she did not raise any claims on behalf of her daughters (see [45] above). 

Conclusion and orders

1. It follows that Ground 8 is not established.  The Second Tribunal did not fall into jurisdictional error. 

2. The Amended Application is dismissed, with costs.  I will so order.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate:

Date:  1 May 2020