FEDERAL COURT OF AUSTRALIA

AGA16 v Minister for Immigration and Border Protection [2018] FCA 628

ORDERS

THE COURT ORDERS THAT:

1.    Within seven days of the date of these orders, the parties submit any agreed minute of proposed orders to give effect to the reasons.

2.    In the absence of agreement, each party within 10 days of the date of these orders submit its proposed orders and an outline of submissions (of no more than three pages).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant and her husband, who are citizens of Egypt, applied in June 2013 for protection visas. The appellant claimed to fear harm on her return to Egypt for three main reasons:

(a)    her and her husband’s religion – Coptic Christian;

(b)    her membership of a particular social group – Coptic women in Egypt; and

(c)    her membership of a particular social group – women in Egypt.

2    On 13 June 2014, a delegate of the first respondent (the Minister) refused to grant the protection visas.

3    The appellant and her husband applied to the (then) Refugee Review Tribunal for review of the delegate’s decision.

4    On 21 January 2016, the Administrative Appeals Tribunal (the Tribunal) decided to affirm the decision of the delegate.

5    The appellant and her husband applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. In the proceeding in the Federal Circuit Court, the appellant’s husband was referred to as “AFZ16” and the appellant as “AGA16”.

6    On 23 August 2017, the Federal Circuit Court ordered that the application be dismissed: AFZ16 & Anor v Minister for Immigration & Anor [2017] FCCA 2012 (the Reasons).

7    The appellant appeals to this Court from the judgment and orders of the Federal Circuit Court. I was told at the hearing that the appellant’s husband has returned to Egypt. He has been named as the third respondent to the proceeding. He has not filed a notice of appearance and has not participated in the appeal.

8    At the hearing of the appeal, the appellant was given leave to amend her notice of appeal. The Minister consented to leave being granted. By her amended notice of appeal, the appellant relies on a single ground, namely that the primary judge erred by not finding that the Tribunal failed to perform its statutory function according to law, in that it failed to consider the appellant’s claim to be entitled to a protection visa arising from her membership of a particular social group, constituted by women in Egypt. It is contended in the particulars to that ground that the Tribunal failed to consider the following matters that formed part of the appellant’s claim: (a) if the appellant was required to return to Egypt, it was likely that the appellant would experience further instances of sexual harassment or sexual assault, including unwanted physical contact and the threat of gender-based violence; and (b) because of her history and medical condition, experiencing further instances of sexual harassment or sexual assault would cause serious harm or significant harm to the appellant.

9    In my view, for the reasons that follow, the appellant’s ground of appeal is established. It follows that the appeal is to be allowed.

The appellant’s submissions to the Tribunal

10    Before referring to the Tribunal’s decision, it is convenient to note certain relevant aspects of the appellant’s submissions to the Tribunal.

11    The appellant and her husband were represented by a solicitor/migration agent in relation to the application for review before the Refugee Review Tribunal and, subsequently, the Administrative Appeals Tribunal. On 17 February 2015, the solicitor/migration agent provided a detailed submission. I note the following aspects of the submission:

(a)    It was submitted that the appellant was a vulnerable person based on a combination of factors, including medical issues and her experiences of sexual assault and harassment. These vulnerability factors were identified on p 3 of the submission (AB 231).

(b)    The submission included ‘country information’ in support of the appellant’s claims that she would be targeted on account of her membership of a particular social group should she return to Egypt (AB 246-249). In this section, it was submitted, in summary, that:

(i)    women in Egypt were particularly vulnerable to attacks and severe harassment;

(ii)    the appellant would be denied the protection of the Egyptian authorities from the harm feared on account of her status as a female, which constituted a particular social group under the Refugees Convention; and

(iii)    such discriminatory denial of state protection constituted persecution under the Convention.

(c)    In support of the proposition that women, or subsets of women in a particular situation and society, can constitute a particular social group for the purposes of the definition of refugee in the Refugees Convention, the submission cited (among other authorities) Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 (Khawar); Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36]; and SYLB v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 498; [2005] FCA 942 at [33].

(d)    The submission referred to a 2015 report published by Amnesty International titled ‘Circles of Hell’ domestic, public and state violence against women in Egypt, which stated in part (AB 247):

The inadequate and discriminatory legal and policy framework, coupled with the Egyptian authorities’ failure to punish or address the underlying causes of violence against women and girls, has resulted in a culture of impunity in which sexual and gender-based violence against women and girls is pervasive. Such violence affects all aspects of their lives, in the family and the public sphere.

(e)    A report published by the Department of Foreign Affairs and Trade (DFAT) in 2014 was also cited (AB 248).

(f)    The submission included a section dealing with the personal circumstances of the appellant (AB 249). It was submitted that certain kinds of harm can affect some victims differently than others, depending on their personal attributes, citing SZBBP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 5. The submission continued: “in considering whether some of the categories of harm listed above (such as threats of harm where the applicants would perceive them to be likely carried out, sexual assault and cumulative ongoing significant harassment and discrimination), it is necessary for the decision-maker to have regard to the visa applicant’s age and personal circumstances (such as physical and mental frailty) before considering whether it would amount to serious harm for s.91R(1)(b), or alternatively, significant harm under s.36(2A).” The submission then noted certain medical condition of the appellant.

12    In support of the application for review, the appellant relied upon statutory declarations and reports from a psychologist and a psychiatrist.

The Tribunal’s decision

13    The Tribunal outlined the relevant law at [5]-[20] of the decision record. In the course of the discussion of the relevant law, the Tribunal referred to ss 91R and 91S of the Migration Act 1958 (Cth) and noted that these provisions qualified certain aspects of Article 1A(2) of the Refugees Convention for the purposes of the application of the Migration Act and the Migration Regulations 1994 (Cth) to a particular person. The Tribunal noted that there are four key elements to the Convention definition of “refugee”. The second element referred to by the Tribunal was that the person must fear persecution. The Tribunal stated that under s 91R(1), persecution needed to involve “serious harm” to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). The Tribunal noted that examples of “serious harm” were set out in s 91R(2). (I note that, although s 91R had been repealed at the time of the Tribunal’s decision, it was nevertheless applicable on the basis that the relevant amendments did not apply to applications for protection visas made prior to 16 December 2014.)

14    The Tribunal also discussed the complementary protection criterion. The Tribunal noted that, if a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa). The Tribunal referred to the definition of “significant harm” in s 36(2A). The Tribunal noted that a person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

15    The Tribunal identified, at [21] of the decision record, the material that was before the Tribunal. This included copies of translated reports of a psychiatrist (which were briefly described by the Tribunal) and a psychologist’s report.

16    The Tribunal summarised, at [22]-[31], the appellant and her husband’s claims. The Tribunal referred to a claim that the appellant and her husband suffered ongoing discrimination in their workplace and generally because they are Copts. The Tribunal described evidence given by the appellant about three incidents of sexual assault. The appellant had given evidence that she had been subjected to two incidents of sexual assault in a public street – one incident in January 2013, the other in March 2013. The appellant had also given evidence that she had been sexually assaulted while walking home from Tahrir Square in April 2013. The appellant’s evidence about these incidents was summarised in [27] and [30] of the decision record. On each occasion, the attacker referred to the appellant’s religion (calling her a Christian or an infidel).

17    The Tribunal’s consideration of the appellant and her husband’s claims was set out at [33]-[53] of the decision record. The Tribunal rejected a number of the appellant’s and her husband’s factual claims at [33]-[40]. However the Tribunal accepted, at [41], that a number of incidents relating to the appellant and her husband had occurred. The Tribunal accepted that the husband’s car (and others with crosses on them) had been completely destroyed and vandalised, and that there was an incident in January 2013 in which a Muslim boy on a bicycle threw acid on the husband’s legs.

18    In relation to the claims of sexual assault, the Tribunal stated, at [42], that it had “some concerns about the credibility that the [appellant] would so regularly be the subject of attacks in such a short period of time (January, March and April 2013)”, but was “prepared to accept these incidents occurred as claimed”.

19    The Tribunal stated, at [43], that while it had accepted that “the applicants have been the victim of a number of assaults (including sexual assault of the [appellant]) and verbal insults on the streets of Cairo”, the Tribunal found that each of these incidents was “committed by different individuals who have not threatened them since” and the Tribunal considered “the chance that they will again be targeted for harm by these individuals or others is remote”. I note that this was a global finding that related both to the incidents of sexual assault against the appellant as well as to other incidents claimed by the appellant and her husband. The Tribunal stated in the last sentence of [43]: “In making this finding, I have taken into account that since the incidents occurred in late 2012 and early 2013, a substantial period of time has passed and there has been a change of government in Egypt with the Muslim Brotherhood removed by the army from power in July 2013 as well as other country information set out below.” This sentence tends to suggest that the Tribunal was focussing on the anti-Christian aspect of the three incidents of sexual assault in finding that the prospect of such incidents re-occurring was remote.

20    The Tribunal set out, at [47], extracts from a DFAT report titled “DFAT Thematic Report Egyptian Copts”, 24 November 2015. The extracts set out by the Tribunal included:

Coptic women are generally able to work and travel unaccompanied in most areas of Egypt. Some Coptic women have reported being harassed or discriminated against after being identified as Copts (for instance, for not having their hair covered). Such incidents are more likely to occur in rural and poorer areas, particularly in Upper Egypt. However, DFAT notes the relatively high levels of societal discrimination against all women in Egypt (including within the Coptic community), and the role that on-going traditional values and ideas about gender roles plays in such discrimination, which is distinct from any specific anti-Copt prejudice.

21    The Tribunal referred, at [48], to other country information. At [49], the Tribunal noted a comment made by the appellant’s husband to the effect that the DFAT information “was political and was only trying to show the general picture”. Paragraphs [50]-[53] of the Tribunal’s decision record are the key paragraphs for present purposes. The Tribunal stated as follows:

50.    I have taken into account the comments of the applicants and I accept and have taken into account that not all people who work in their area are from middle class backgrounds. However, I do not accept their claims that they have been targeted by their neighbours in the past. I have taken into account the reports referred to by the applicants’ agent and I have given considerable weight to the DFAT information because it is authoritative, recent and they have been particularly charged with providing this advice to the Australian government.

51.    The country information above, discussed with the applicants, indicates that there is some low level discrimination against Coptic Christians as described above but that generally, Copts and other Egyptians live side by side without difficulty. Though the applicants have suffered incidents of significant and serious harm in the past, I note that the applicants though now retired have both been well educated and employed professionally for long periods. The country information indicates that, whilst Islamists may have been able to harass Christians during Morsi’s presidency, the Muslim Brotherhood is now out of power. The country information also indicates that an increase in violence against Christians in 2013 was linked to the overthrow of Morsi. I have taken into account that the applicants reside in Heliopolis, a middle class urban area of Cairo and that the country information indicates that Copts generally are at a low risk of personal harm from sectarian violence in such areas and that most Copts lives peacefully with their Muslim neighbours. I have taken into account the reports referred to by the agent concerning violence against women (including sexual harassment and assault) in Egypt and that DFAT states there exists relatively high levels of societal discrimination against all women in Egypt (including within the Coptic community). I have also taken into account information in the recent DFAT report on Egypt [ie, the 24 November 2015 report] as it relates to women. This report notes that sexual harassment is a frequent occurrence across the socio-economic spectrum. It refers to a May 2013 study by UN Women that found that 99.3 per cent of women experienced some form of sexual harassment, whilst 91.5 per cent reported experiencing unwanted physical contact; however, I do not consider that such treatment necessarily amounts to either serious or significant harm. DFAT assessed that the majority of Egyptian women, regardless of their religion face persistent societal discrimination and threat of gender-based violence. However, the [appellant] is now retired and was able to have a long professional career and I consider the chance or risk that the level of societal discrimination against her would amount to either serious harm or significant harm to be remote. Furthermore, the country information also indicates that Coptic women are generally able to work and travel unaccompanied in most areas of Egypt. There are some reports of Coptic women being harassed or discriminated against after being identified as Copts (for instance, for not having their hair covered). However, such incidents are more likely to occur in rural and poorer areas, particularly in Upper Egypt and I note the applicants come from a middle class urban area in Cairo. I have accepted that the [appellant] suffered three incidents of a sexual nature in early 2013, however, these incidents occurred within a short period of time when the Islamists were in power and the [appellant] has not claimed that she was subject to this type of treatment prior to that.

52.    In making these findings, I have taken into account the applicants’ ages and the [appellant’s] physical and psychological vulnerabilities. Whilst there are ongoing incidents against Christians reported, in view of the information above and the number of Christians in Egypt, I do not accept that the applicants face a real chance of serious harm now or in the reasonably foreseeable future in Egypt from Islamists or anyone else because of their religion or their membership of a particular social group (consisting of their family). Considering the country information as a whole and her individual circumstances, I do not accept that the [appellant] faces a real chance of persecution on account of her membership of a particular social [group] consisting of “female Coptic Christians in Egypt[”] or “women in Egypt”. Accordingly, I do not accept that they have a well-founded fear of persecution even when their claims are considered cumulatively.

53.    Considering their individual circumstances and the country information cumulatively, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to Egypt, there is a real risk they will suffer significant harm.

(Footnotes omitted; emphasis added.)

22    The Tribunal concluded that it was not satisfied that either the appellant or her husband was a person in respect of whom Australia had protection obligations. Therefore, it was concluded, they did not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It followed that they were also unable to satisfy the criterion in s 36(2)(b) or (c).

The proceeding in the Federal Circuit Court

23    The appellant and her husband applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The appellant was the second applicant and her husband was the first applicant in the Federal Circuit Court proceeding. At the hearing before the Federal Circuit Court, they were represented by counsel and solicitors. They relied on an amended application dated 24 April 2017, which contained a single ground of review, namely that the Tribunal failed to perform its statutory function according to law, in that it failed to properly consider the appellant and her husband’s claim that in the event that they were to return to Egypt, they feared that the appellant would suffer persecution or significant harm in the form of sexual harassment and/or sexual assault.

24    The primary judge handed down the Reasons on 23 August 2017. After setting out the sole ground of review, the primary judge outlined the background to the proceeding at [5]-[8]. The primary judge described the Tribunal hearing and the findings of the Tribunal at [9]-[20].

25    The primary judge’s consideration of the issue raised by the ground of review was at [21]-[32] of the Reasons. As noted in [22] of the Reasons, the appellant and her husband submitted that, in properly considering the appellant’s claim, the Tribunal was required to give consideration to each of the following matters:

(a)    the incidence of sexual harassment and gender-based violence in Egypt;

(b)    whether gender-based violence and sexual harassment are officially tolerated or condoned by the Egyptian State in the sense discussed in Khawar at [30] and SZAYT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 857 at [44];

(c)    the appellant’s history of sexual assault and the effect that history had on the appellant’s medical condition;

(d)    the likelihood that the appellant would experience further incidents of sexual assault and/or sexual harassment if she were required to return to Egypt; and

(e)    whether in light of the appellant’s medical condition further incidents of sexual assault or sexual harassment would constitute serious or significant harm to the appellant.

26    As noted at [23] of the Reasons, the appellant and her husband submitted that the Tribunal had failed to give consideration to the above matters.

27    The primary judge, at [24], referred to SZSZW v Minister for Immigration and Border Protection (2015) 150 ALD 465; [2015] FCA 562 at [17], where Perry J said that the requirement to consider a claim involved “the application of an active intellectual process”. The primary judge stated that: it was for the Court to determine whether or not the Tribunal had applied an active intellectual process to the appellant’s claims; and the Tribunal’s reasons should be read fairly and not with a fine appellate tooth-comb, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 291 per Kirby J. The primary judge then said at [25]-[32]:

25.    The Court is satisfied that the Tribunal did properly engage in this process. It considered the claims and components of claims of the [appellant and her husband], together with relevant country information, and set out that consideration in the Decision Record. The Tribunal clearly demonstrated an awareness and acceptance of the [appellant’s] claim that sexual harassment, assault and violence against women was pervasive in Egypt and tolerated by the authorities.

26.    Furthermore, the Tribunal accepted that the [appellant] had been the victim of sexual harassment and sexual assault on three occasions as claimed, and the Tribunal, as detailed in its Decision Record, made express reference to the [appellant’s] psychological condition, including in connection to her claims of sexual harassment and assault. The Tribunal considered the material put before it as to the [appellant’s] past experiences of assault, and their impact upon her psychological condition, as set out in the reports which the Tribunal noted were before it.

27.    The Tribunal considered carefully the claims as made by the [appellant and her husband], considered relevant country information which it discussed with the [appellant and her husband], and made findings open to it on the basis of the evidence before it.

28.    The Tribunal did not accept that the [appellant] faced a real chance of serious harm and, on that basis, did not accept that the [appellant] had an objectively well-founded fear of harm. In Chan Yee Kin & Minister for Immigration and Ethnic Affairs [(1989) 169 CLR 379], Mason CJ at 389 observed that:-

“… I agree with the conclusion reached by McHugh J that a fear of persecution is ‘well-founded’ if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. … I prefer the expression ‘a real chance’ because it clearly conveys the notion of a substantial, as distinct from a remote, chance of persecution”.

29.    As submitted by counsel for the [Minister], where the Tribunal is not satisfied objectively speaking that there is a real chance of persecution, it is not required to further consider an Applicant’s subjective fears. As Kenny J explained in [MZWYY v] Minister for Immigration and Multicultural Affairs [2006] FCA 506 at [14]:-

“This is because without a sufficient objective chance of persecution the Applicant cannot have a well-founded fear of persecution.”

30.    Whilst there was no need for the Tribunal to consider how any future attacks would impact upon the [appellant’s] psychological wellbeing because the Tribunal had found there was no real chance of any such acts occurring, the Tribunal nevertheless did consider the subjective aspects of the [appellant’s] fears, as referred to in the passages cited from the Decision Record in paragraph 19 above [ie, [51]-[53] of the Tribunal’s decision record].

31.    As set out in paragraph 51 of the Decision Record, the Tribunal found that the sexual harassment that is a frequent occurrence across Egypt did not amount to “either serious or significant harm”, noting [among] other things that “Coptic women are generally able to work and travel unaccompanied in most areas of Egypt …”. In that circumstance, the Minister submits that the Tribunal was not required to expressly consider the question of whether the State tolerated or condoned sexual harassment or assault because the question of State toleration or condonation only arose where the harm inflicted by private citizens constituted “serious harm”. The Court accepts this submission.

32.    The Court concludes that the application should be dismissed with costs. The Tribunal did engage in an [active] intellectual process with the [appellant’s] claims in relation to her fear of being sexually harassed and/or assaulted and concluded that the [appellant] did not face a real chance of being harmed. There was no obligation on the Tribunal to thereafter consider how any such harm may subjectively impact upon the [appellant] nor whether the State tolerated or condoned sexual harassment and/or assault, although, in fact, the Tribunal did consider those issues, as set out in the Decision Record. No jurisdictional error attends the decision of the Tribunal.

(Emphasis added.)

28    Accordingly, the application was dismissed.

The appeal to this Court

29    The appellant appeals to this Court from the orders of the Federal Circuit Court. The sole ground in the amended notice of appeal is as follows:

1.    The learned trial Judge erred by not finding that the Tribunal failed to perform its statutory function according to law in that it:

a.    failed to consider the Appellant’s claim to be entitled to a protection visa arising from her membership of a particular social group, constituted by women in Egypt.

PARTICULARS

The learned trial Judge erred by not finding that the Tribunal failed to consider the following matters that formed part of the appellant’s claim:

•    If the appellant was required to return to Egypt, it was likely that the appellant would experience further instances of sexual harassment or sexual assault, including unwanted physical contact and the threat of gender based violence.

•    Because of her history and medical condition, experiencing further instances of sexual harassment or sexual assault would cause serious harm or significant harm to the appellant.

Consideration

30    The relevant legal principles are as follows. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [1], [42]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (Applicant WAEE) at [44]-[47]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS) at [62]. In Applicant WAEE, the Full Court of this Court (French, Sackville and Hely JJ) said at [44]-[47]:

44    It is central to the exercise of the dispositive powers conferred by s 415 that the Tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss 423, 424, 425 and 426 of the Migration Act.

45    In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:

… a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;

(s 36(2)(a) read with s 415(1))

The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.

46    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. 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. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

(Emphasis added.)

31    It has been held that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it that, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Migration Act and thereby a jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [63]; SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452 (SZTQP) at [50]. Further, where the Tribunal fails to make a finding on a “substantial, clearly articulated argument relying on established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]-[25], [95]; NABE at [55]; SZTQP at [50]. It has also been said that consideration of a representation or submission involves an “active intellectual process” directed at the representation or submissions: Tickner v Chapman (1995) 57 FCR 451 at 462; WZAQU v Minister for Immigration and Citizenship (2013) 233 FCR 534 at [12]; see also NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [46], [212].

32    Section 430 of the Migration Act provides that, where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that (among other things): sets out the reasons for the decision; sets out the findings on any material questions of fact; and refers to the evidence or any other material on which the findings of fact were based. The effect of this provision was discussed by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) and the Full Court of this Court in MZYTS. In Yusuf, Gaudron J stated at [35] and [44]:

35    The corollary to the construction of s 430(1)(c) of the Act set out above is that it is to be inferred from the absence of a reference to, or, a finding with respect to some particular matter that the Tribunal did not consider that matter to be material. As will later appear, there may be cases where that will indicate error of a kind that will ground review under s 476(1) of the Act or, even, jurisdictional error which will ground relief under s 75(v) of the Constitution. …

…

44    It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act. And the latter constitutes reviewable error for the purposes of s 476(1)(b) and (c) of the Act.

33    Also in Yusuf, McHugh, Gummow and Hayne JJ stated at [69]:

It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s  430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

(Footnotes omitted; emphasis in original.)

34    I note also the principles discussed by Brennan CJ, Toohey, McHugh and Gummow JJ in Wu Shan Liang at 271-272.

35    In oral submissions, counsel for the appellant referred to SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497 as a convenient reference point for extracts from a number of commentaries that support the proposition that, in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities: see SZTEQ at [144] and [151], citing Hathaway JC and Foster M, The Law of Refugee Status (2nd ed, Cambridge University Press, 2014), p 198; and Storey H, “Persecution: Towards a Working Definition” in Chetail V and Bauloz C (eds), Research Handbook on International Law and Migration (Edward Elgar, 2014), p 476. The appellant’s proposition is consistent with the Full Court’s observations in SZTEQ at [153]. Counsel for the Minister accepted that it is relevant to take into account the personal circumstances of the applicant in assessing whether he or she has a well-founded fear of serious harm (T20). Thus there did not appear to be any dispute about the appellant’s proposition, which I accept.

36    The appellant submits that her claim before the Tribunal was (relevantly) to face harm on account of being female in Egypt and that this claim was put to the Tribunal in written submissions from the appellant’s solicitor/migration agent. The appellant submits that: it was submitted to the Tribunal that the appellant was a vulnerable person; and evidence of the appellant’s vulnerability and frailty was provided to the Tribunal.

37    The appellant’s submissions as to the error of the Tribunal and the primary judge can be summarised as follows:

(a)    The Tribunal was required to consider the chance that the appellant would suffer sexual harassment and unwanted physical contact. Whilst there is no clear finding in this regard, in the context of the country information relied on by the Tribunal (at [51] of the decision record), it would appear that the Tribunal accepted, or would have accepted, that there was a real chance or risk that the appellant, as a woman, would experience sexual harassment and unwanted physical contact if returned to Egypt.

(b)    The Tribunal was also required to consider whether any sexual harassment and unwanted physical contact experienced by the appellant would amount to serious or significant harm, taking into account the appellant’s claim to be suffering from a number of frailties that rendered her particularly vulnerable to any experience of harm.

(c)    The Tribunal failed to properly consider whether there was a real chance or real risk that the appellant would experience sexual harassment and unwanted physical contact if returned to Egypt, and whether such experiences would amount to serious or significant harm to the appellant.

(d)    The primary judge accepted the Minister’s submission that the Tribunal found that sexual harassment did not amount to serious or significant harm (Reasons, [31]). That finding was incorrect. No such finding was made by the Tribunal. Instead, the Tribunal found that “such treatment” did not “necessarily” amount to either serious or significant harm (at [51] of the decision record).

(e)    The Tribunal’s finding that sexual harassment and unwanted physical contact did not necessarily amount to either serious or significant harm did not dispose of the appellant’s claim. It left open that in some circumstances sexual harassment and unwanted physical contact could amount to serious or significant harm. The Tribunal failed to consider whether sexual harassment and unwanted physical contact would amount to serious or significant harm to the appellant, taking into account the appellant’s claims and the evidence before it regarding her frailty and vulnerability.

(f)    The Tribunal ignored entirely the question of whether there was a real risk the appellant would face the threat of gender-based violence and whether any threat of gender-based violence faced by the appellant would amount to either serious harm or significant harm. Again, that question needed to be considered in light of the appellant’s particular vulnerabilities arising from her mental and physical health, her age and her past experiences.

38    The Minister’s submissions can be summarised as follows:

(a)    The appeal to this Court is brought under s 24 of the Federal Court of Australia Act 1976 (Cth), and is in the nature of a rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [30]. Accordingly, whereas the task of the primary judge was to determine whether the Tribunal’s decision was affected by jurisdictional error, the task of this Court is to determine whether the primary judge committed an appealable error. In the Minister’s submission, whether or not the Tribunal considered the appellant’s claims, in the circumstances of the present case, was fundamentally a matter for the primary judge’s evaluation. Her Honour’s reasoned evaluation was that the Tribunal considered the claims. It is not sufficient therefore for the appellant to, in effect, run its case again – it must show appealable error. The appellant has not demonstrated this.

(b)    The appellant impugns the primary judge’s finding at [31] of the Reasons that the Tribunal found that sexual harassment did not amount to serious or significant harm. However, reading the Tribunal’s reasons fairly, the Minister notes the statement in [51] of the decision record: “I do not consider that such treatment necessarily amounts to either serious or significant harm”. See also [52] and [53]. When the Tribunal’s reasons are read fairly and in context (see Wu Shan Liang at 291), it is clear that the Tribunal did make a finding that the sexual harassment the appellant might face did not amount to serious or significant harm.

(c)    Moreover, the appellant’s analysis ignores that it was for the appellant to satisfy the Tribunal that she met the requirements of the visa – there was no obligation on the Tribunal to make positive findings either accepting or rejecting the appellant’s claims: see Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (VSAF) at [16]-[17].

(d)    In any event, the appellant’s complaint on appeal is that the Tribunal failed to consider the appellant’s claims (cf make findings). As observed by Perry J in SZSZW v Minister for Immigration and Border Protection (2015) 150 ALD 465; [2015] FCA 562 at [17], the requirement to consider a claim made by an applicant requires “the application of an active intellectual process.” See also MZYTS at [38]. It was a question of fact for the primary judge to determine whether the Tribunal applied an active intellectual process to the claims made by the Appellant. In this regard, the Tribunal considered each of the claims advanced by the appellant in relation to her membership of the group, ‘women in Egypt’: see [21], [42], [51] and [52] of the decision record.

(e)    The ‘real chance’ test has been imported into refugee law jurisprudence to assist in determining whether a fear of harm is objectively ‘well-founded’: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389. Where the Tribunal is not satisfied, objectively speaking, that there is a real chance of persecution, it is not required to further consider an applicant’s subjective fears: see MZWYY v Minister for Immigration and Multicultural Affairs [2006] FCA 506 (MZWYY) at [14]. Nevertheless, it is clear from [21] and [52] of the Tribunal’s reasons that it did consider the subjective aspects of the appellant’s fears, including the potential impact any future sexual harassment or assault would have upon her psychological well-being. However, in the light of its finding that the appellant did not face a real chance of harm, the Tribunal did not need to then consider how any future attacks would impact upon her mentally. The Tribunal’s finding that there was no real chance of any such attacks occurring obviated the need to consider this further issue: see, generally, Applicant WAEE at [46]-[47].

(f)    The appellant’s contention that the Tribunal did not consider the appellant’s personal circumstances is contrary to [52] (first sentence) of the decision record. Moreover, given the Tribunal found that the appellant did not have a well-founded fear of persecution (on the basis that there was not a real chance of her being harmed in the future), the Tribunal did not need to consider whether any instance of harm constituted “serious harm” for the purposes of s 91R(1)(b) of the Migration Act. Nevertheless, it was implicit in the Tribunal’s reasons at [51] that it considered the appellant’s claim to fear harm in the context of circumstances where the state did little to prevent widespread harassment. This is evidenced by the Tribunal’s reference to country information which spoke of societal discrimination and the risks faced by women in the country generally.

39    In the course of oral submissions, counsel for the Minister accepted that the phrase that appears in [51] of the Tribunal’s decision record – “however, I do not consider that such treatment necessarily amounts to either serious or significant harm” – should be read as saying that such treatment may amount to serious harm in some cases and not in others (T18-19). Thus there was no real dispute between the parties as to how the phrase should be read.

40    In my view, the appellant’s appeal ground should be upheld.

41    It is convenient to refer first to the alleged factual error in [31] of the Reasons. The primary judge stated “[a]s set out in paragraph 51 of the Decision Record, the Tribunal found that the sexual harassment that is a frequent occurrence across Egypt did not amount to ‘either serious or significant harm’” . In my respectful opinion, this statement was incorrect. It appears that her Honour was referring to the Tribunal’s statement, “however I do not consider that such treatment necessarily amounts to either serious or significant harm”. But this was not a finding that such treatment (sexual harassment and unwanted physical contact) would not amount to serious or significant harm. It was merely a finding that they would not necessarily amount to such harm. In other words, as counsel for the Minister accepted, the Tribunal was saying that sexual harassment and unwanted physical contact may amount to serious or significant harm in some cases, and not in others. This left open whether or not they could give rise to a real risk of serious or significant harm to the appellant, a matter in respect of which the Tribunal did not make a finding in the balance of [51] of the decision record. (The Tribunal made a finding in relation to societal discrimination, but this is a different matter.)

42    I turn now to address the Tribunal’s decision. Although the Tribunal was aware of and reached an overall conclusion in relation to the appellant’s claim to fear persecution for reason of her membership of a particular social group, namely women in Egypt (see [52] of the decision record), the Tribunal failed to make findings about two critical issues in relation to this claim. These were:

(a)    whether, if the appellant was required to return to Egypt, there was a real chance that she would experience gender-based violence, sexual harassment or unwanted physical contact; and

(b)    if so, whether gender-based violence, sexual harassment or unwanted physical contact would amount to “serious harm” or “significant harm” to the appellant.

43    In the absence of findings about these critical issues, it may be inferred that the Tribunal did not consider, or did not sufficiently consider, these issues. Given the materiality of these issues to the Tribunal’s overall conclusion, the absence of such findings is a matter of substance, not the form of the Tribunal’s decision record.

44    The Tribunal referred in [51] to evidence of the prevalence of sexual harassment and unwanted physical contact and the threat of gender-based violence. In particular, the Tribunal referred to a May 2013 study by UN Women that found that 99.3 per cent of women experienced some form of sexual harassment, and 91.5 per cent reported experiencing unwanted physical contact. The Tribunal also referred to DFAT’s assessment that “the majority of Egyptian women, regardless of their religion[,] face persistent societal discrimination and [the] threat of gender-based violence”. Having referred to this evidence, the Tribunal did not go on, in the balance of [51] or elsewhere, to consider and make a finding as to whether, if the appellant was required to return to Egypt, there was a real chance that she would experience any or all of these. The Tribunal noted country information to the effect that Coptic women are generally able to work and travel unaccompanied in most areas of Egypt. This seems to be primarily directed to the claim relating to religion. In any event, it does not clearly address the issue. The Tribunal referred to “some reports of Coptic women being harassed or discriminated against after being identified as Copts” and noted that such incidents were more likely to occur in rural and poorer areas. Again, this seems to be primarily directed to the claim relating to religion. The Tribunal stated in the last sentence of [51] that it had “accepted that the [appellant] suffered three incidents of a sexual nature in early 2013”, but said that “these incidents occurred within a short period of time when the Islamists were in power and the [appellant] has not claimed that she was the subject of this type of treatment prior to that”. As with [43] of the decision record, the Tribunal seems to have focussed on the anti-Christian aspect of the three incidents of sexual assault in concluding that such incidents were unlikely to re-occur. But the Tribunal did not grapple directly with the evidence of the prevalence of sexual harassment and unwanted physical contact, as well as threats of gender-based violence, referred to earlier in [51].

45    Further, the Tribunal did not consider and make a finding as to whether gender-based violence, sexual harassment or unwanted physical contact amounted to “serious harm” or “significant harm” to the appellant. The matters referred to in the second half of [51] do not address whether gender-based violence, sexual harassment or unwanted physical contact would amount to serious or significant harm to the appellant. No reference was made to the appellant’s personal circumstances, including her vulnerabilities, in connection with gender-based violence, sexual harassment and unwanted physical contact. To the extent that a finding was made as to serious or significant harm, it related to societal discrimination, not to gender-based violence, sexual harassment or unwanted physical contact.

46    It is true that the Tribunal stated, in the first sentence of [52], that, “[i]n making these findings, I have taken into account the applicants’ ages and the [appellant’s] physical and psychological vulnerabilities”. However, the fact that a matter has been noted as “considered” does not preclude an analysis as to whether that matter has been given consideration as required by law: Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [27]. In this case, the Tribunal’s statement suffers from several difficulties. First, [51] does not contain a finding as to whether gender-based violence, sexual harassment and unwanted physical contact would amount to serious or significant harm to the appellant. Secondly, the references to the appellant’s personal circumstances in the second half of [51] do not relate to the relevant issue for present purposes, namely whether gender-based violence, sexual harassment or unwanted physical contact would amount to serious harm to the appellant. Further, the balance of [52] does not suggest that these matters were given due consideration.

47    I note for completeness that in [53] of the decision record, in the context of the complementary protection criterion, the Tribunal expressed a conclusion in relation to “significant harm”. However, this was a conclusion in relation to the complementary criterion as a whole, and did not constitute consideration of, or a specific finding in relation to, the issue whether gender-based violence, sexual harassment and unwanted physical contact would amount to significant harm.

48    The Minister submits that there was no obligation on the Tribunal to make positive findings either accepting or rejecting the appellant’s claims, relying on VSAF at [16]-[17]. That was a very different case, in which the applicant failed to appear at the hearing before the tribunal. It may be accepted that it is for the applicant to satisfy the Tribunal that he or she meets the relevant criteria and it may not be necessary for the Tribunal to make a finding one way or the other about certain matters. But the issue here is whether the Tribunal considered certain issues that were critical to the appellant’s claim and which were raised by the evidence.

49    The Minister submits that, where the Tribunal is not satisfied, objectively speaking, that there is a real chance of persecution, it is not required to further consider an applicant’s subjective fears, relying on MZWYY at [14]. I accept this as a general proposition. However, the issue in MZWYY was whether an applicant’s fear of persecution was well-founded, not whether particular conduct might amount to persecution due to the particular attributes of an applicant. Further, this submission proceeds on the premise that the Tribunal found that it was not satisfied, objectively speaking, that there was a real chance of persecution. The Tribunal did not approach the matter this way (by separating objective from subjective matters), and did not make a finding to this effect.

50    The Minister submits that, given the Tribunal found that the appellant did not have a well-founded fear of persecution (on the basis that there was not a real chance of her being harmed in the future), the Tribunal did not need to consider whether any instance of harm constituted “serious harm” for the purposes of s 91R(1)(b) of the Migration Act. This submission is premised on the Tribunal having found that there was not a real chance of the appellant being harmed in the future. For the reasons given above, the Tribunal did not make a finding to this effect.

51    In summary, the Tribunal failed to consider two critical issues that were relevant to the appellant’s claim that she feared harm if returned to Egypt for reason of her membership of a particular social group, namely women in Egypt. In these circumstances, the Tribunal failed to consider a claim of the appellant and constructively failed to exercise its jurisdiction. In my respectful opinion, the primary judge erred by not finding that the Tribunal had constructively failed to complete its jurisdictional task.

Conclusion

52    It follows from the above that the appeal is to be allowed. In case there are complexities arising from the fact that the appellant’s husband was also a party to the proceeding in the Tribunal and the Federal Circuit Court, I will provide a short period of time for the parties to prepare minutes of orders to give effect to these reasons (including appropriate orders as to costs).

Associate:

Dated:    9 May 2018