FEDERAL COURT OF AUSTRALIA

DJM17 v Minister for Home Affairs [2019] FCA 1153

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    The power to grant or refuse a visa is conferred on the Minister by the Migration Act 1958 (Cth). The Act and the regulations made under it establish the criteria an applicant must satisfy in order to acquire a visa. With certain qualifications which are not presently relevant, if the Minister is satisfied that the applicant meets those criteria, the Minister is bound to grant the visa; if not, the Minister is bound not to grant it: see Migration Act, s 65. Like any of the Minister’s powers under the Act, the Minister may delegate the power to another person.

2    The appellant applied for a protection visa. This appeal arises out of her inability to date to secure one.

3    The principal criteria for a protection visa are contained in s 36(2) of the Act.

4    One criterion, often referred to as the refugee criterion, requires that the Minister be satisfied that the person in question is a non-citizen in Australia to whom Australia owes protection obligations because the person is a refugee: s 36(2)(a). A refugee is defined in s 5H. Where the person has a nationality, a refugee is a person who is “outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”: s 5H(1)(a). A person has a well-founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion; and there is a real chance that the person would be persecuted for one or more of those reasons if he or she were to return to any part of that country: s 5J(1). But the reason or reasons must be the essential and significant reason(s) for the persecution; and the persecution must involve serious personal harm and systematic and discriminatory conduct: s 5J(4).

5    Another criterion, often called the complementary protection criterion, applies if the refugee criterion is not satisfied. It requires the Minister to be satisfied that the non-citizen is owed protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm: s 36(2)(aa). In the case of a non-citizen with a nationality, a receiving country is the country of nationality: s 5. There is taken to be no such risk, however, if the Minister is satisfied, amongst other things, that it would be reasonable for the non-citizen to relocate to another part of the country where there would be no such risk or where protection is available from an authority of the country which would obviate the risk: s 36(2B)(a) and (b).

6    The appellant is a Malaysian national of Indian ethnicity and a Hindu. She arrived in Australia in April 2014 on an electronic travel authority visa. A little over two years later, in June 2016, she applied for a protection visa. In her application, she claimed that she was persecuted in Malaysia and that she fears the persecution would continue if she were to return. In brief, the appellant alleged that she had been harassed by, and had received death threats from, a woman and her brother, an army major. She claimed that this conduct took place after she was married in a Hindu ceremony to the woman’s husband, A, a Muslim, while, unbeknown to the appellant, he was already married. She claimed that the woman and her brother had arranged for private investigators to stalk her and had contacted her employer asking it to take disciplinary action against her and to transfer her to another state so that she would not be able to meet with A. Although she lodged a police report after she was threatened, the appellant said that the police did nothing to assist her. She said that she had heard that the woman was still going to her house in Malyasia seeking her out and, although she is now estranged from A, she claimed that she was still afraid the woman would harm her. She professed to have “all the necessary documents” to prove the truth of the incidents she had recounted and would provide them to the Government at any hearing.

7    A delegate of the Minister was not satisfied that the appellant met the criteria for a protection visa and so did not grant her the visa. The delegate was not satisfied that the appellant was a refugee because she was not satisfied that the appellant’s fear of persecution was for any of the reasons mentioned in s 5J(1)(a) of the Act. She was not satisfied that the appellant met the complementary protection criterion because she considered that the appellant’s fear of harm was not well-founded since country information indicated that she should be able to obtain state protection and there was nothing in Malaysian law that would prevent her from relocating within Malaysia.

8    The appellant applied to the Tribunal for a review.

9    The appellant submitted a number of documents to the Tribunal. They included a copy of a report to the Royal Malaysian Police made in March 2012, together with a certified English translation. It supported her account. Importantly, however, for what later transpired, the police report it did not suggest that the appellant feared religious persecution or that she feared that A would harm her. Indeed, the report stated that she was in the process of embracing Islam in order to marry A in accordance with Muslim rites. The documents also included text messages from someone identified only as “Chetta”, which the appellant told the Tribunal was her nickname for A, and a document in Malay, with no certified translation, which the appellant claimed was an email she sent to her former employer.

10    The Tribunal affirmed the delegate’s decision.

11    The Tribunal accepted that the appellant may have been in a relationship with a man whom she later discovered to be married and that the relationship had broken down. For various reasons, however, it did not accept that “other claims or integers of this claim” were truthful. It pointed to the following matters:

(1)    The appellant was unable to account for why, after more than three years of no contact, A would suddenly begin contacting her after she arrived in Australia and she was unable to give a credible explanation for how he obtained her Australian contact details.

(2)    The contents of the text messages purportedly sent by A were inconsistent with the appellant’s claims.

(3)    The appellant reported the conduct to the police in 2012 but she remained in Malaysia for another four years and did not provide any evidence to corroborate her claim that she had been threatened thereafter.

(4)    The appellant’s account of continuing harassment and threats after the breakdown of her marriage was unconvincing.

(5)    The appellant travelled in and out of Malaysia on multiple occasions since 2012. Many of those trips were to India where she had family. The fact that she did not attempt to stay in India and repeatedly returned to Malaysia was difficult to reconcile with her claim that she could no longer return to Malaysia owing to a real chance or risk that she will suffer serious or significant harm.

(6)    The appellant claimed that she would be pressured to convert to Islam but that claim was not made in her visa application, she gave vague and inconsistent evidence in support of it, and offered no documentary evidence to corroborate it.

12    With respect to the last item, the Tribunal noted that the appellant had suggested that the Tribunal should make inquiries to obtain documentation but declined to do so.

13    The appellant then applied to the Federal Circuit Court for an order quashing the Tribunal’s decision and a writ of mandamus directed to the Tribunal requiring it to determine the application according to law. The effect of Pt 8 Div 2 of the Act is that the court only has the power to quash a decision of the Tribunal to affirm a decision of the Minister or his delegate if it is affected by jurisdictional error.

14    Three grounds were pleaded in the application for review (without alteration):

1.    The Tribunal failed to consider s 91R(2)(a) of the Migration Act, if she asked to relocate in Malaysia.

2.    The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon her returns to Malaysia.

3    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

15    The first ground is not easy to understand. Grounds 2 and 3 were identical to the grounds pleaded in DOQ16 v Minister for Immigration and Border Protection [2018] FCA 2021 and several other cases besides, and were described by the primary judge in his reasons as “template” grounds.

16    The primary judge rejected each of the grounds.

17    With respect to the first ground, his Honour pointed out that s 91R(2)(a) was inapplicable, since it had been repealed by the time the appellant had applied for a protection visa. His Honour noted that the paragraph referred to serious harm, and that the issue is now dealt with in s 5J(5) of the Act. I interpolate that, as s 91R(2) did, s 5J(5) provides a non-exhaustive list of circumstances that qualify as serious harm, for the purpose of the requirement in s 5J that the persecution involves serious harm to the person. His Honour also observed that, for the purpose of the complementary protection criterion, the real risk of significant harm does not apply if it is reasonable for a person to relocate to an area of their country where there is no such risk. His Honour \ said that the real difficulty with this ground, however, was that the Tribunal rejected the factual basis for the appellant’s claims.

18    Since the Tribunal had rejected all the appellant’s claims, the primary judge held that the Tribunal’s analysis did not reach the level of inquiry to which the second ground was directed.

19    With respect to the third ground, his Honour said that the level of generality in which it was pleaded made it almost meaningless and difficult to understand. He interpreted it, however, as an allegation that there was no rational basis for the Tribunal’s decision. His Honour rejected the allegation as re-formulated, holding that there were two rational bases for the decision: first, that the Tribunal did not accept that the appellant’s account was credible and second, that the Tribunal’s conclusion was based on its analysis of the evidence.

20    The appellant apparently argued at the hearing that the Tribunal should have accepted her claims and, in particular, her claim that the messages on her phone were from A in Malaysia, from whom she feared harm. The primary judge regarded this argument as nothing more than an invitation to conduct a review of her claims on their merits. In his judgment his Honour quoted the Tribunal’s reasons for rejecting this particular claim. He held that they were “cogent” and provided a logical basis for the Tribunal’s rejection of this aspect of her application.

21    The appellant also referred to her unsuccessful attempts to obtain additional documents from her employer in Malaysia. The primary judge inferred that she was complaining that the Tribunal should have obtained them, or at least tried to obtain them for itself, as she had requested. His Honour held that the failure of the Tribunal to do so did not amount to a jurisdictional error, particularly since there was no obvious inquiry the Tribunal could have made or information it could readily have sought.

22    The notice of appeal contained two grounds:

1    The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with my case. I was not represented by any solicitor or barrister.

2.    The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

23    The Minister submitted that neither of these grounds was raised below and leave was therefore required to raise them in the appeal. He opposed the grant of leave. Where a point is raised for the first time on appeal, leave is required and should only be granted if it is expedient in the interests of justice to do so, that is to say, where the point clearly has merit, is advanced, and there is no real prejudice to the respondent in allowing it to be agitated: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]–[48]. The Minister opposes the grant of leave, not because he is prejudiced, but because he contends that the grounds do not have any prospect of success and no explanation has been offered for why they were not raised before the Federal Circuit Court. The Minister described them as “template grounds”. They were identical to the grounds of appeal AFQ16 v Minister for Home Affairs [2019] FCA 407. Ground 2 was in identical terms to ground 2 of the notice of appeal in DOQ16 and ground 1 was very similar to ground 1 of the notice of appeal in that case. Ground 2 was also identical to ground 3 of the draft notice of appeal in Baby v Minister for Immigration and Border Protection [2019] FCA 214. That does not take the matter very far, however.

24    I accept that the first ground of appeal was not pleaded. It will be recalled, however, that the primary judge interpreted the third ground of the application as amounting to an allegation that there was no rational basis for the Tribunal’s decision. As I read the first ground, it is merely an allegation that his Honour’s conclusion on that question was wrong. That is not a new point. Leave is not required.

25    Read fairly, the second ground of appeal amounts to an assertion that the primary judge failed to consider the alleged errors the appellant brought to the court’s attention in her application for judicial review and/or at the hearing. For this reason, leave is not required to argue this ground either.

26    I now turn to consider those grounds.

27    The appellant did not file submissions in support of her appeal. At the hearing I invited her to address the grounds.

28    With respect to the first ground, I asked her what she meant by “the judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with [her] case”. This was her reply:

I was not satisfied with the decision – came from AAT especially. I was trying to tell the – sorry. The person who questioned me in AAT that I am really – fear that I will be harmed in my country if I was – if I have to return back, because there are things that I can’t prove by documents whereby the man and his wife is still harassing my family there, and they can’t provide the evidence to. When they go to – if they go to the police station and they try to explain, the police says your sister is not here, why are you worried? She’s away from this country, so why are you worried? Why do you want to make a police report and all that now? So certain things that I can’t prove by documents, and I just – I feel that I still have a threat. If I go I will definitely be harmed.

29    A manifestly unreasonable decision may involve jurisdictional error. The relevant principles were summarised by the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]. But the matters raised by the appellant could not on any view support the conclusion that the Tribunal’s decision was manifestly unreasonable. It is apparent from the appellant’s remarks that all she was really doing was expressing in an emphatic way her disagreement with the Tribunal’s decision (see, for example, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] (Gleeson CJ and McHugh J). That is not enough.

30    Nor is the criticism of the primary judge justified. As I have already observed, the primary judge did consider whether there was any rational basis for the Tribunal’s decision. The submissions made by the appellant provide no support for the proposition that his Honour was wrong to conclude that there was. Moreover, I agree with his Honour that the reasons given by the Tribunal provide a rational basis for its decision. The decision could not be said to be manifestly unreasonable.

31    It follows that the first ground of appeal should be dismissed.

32    The second ground of appeal should also be dismissed.

33    I asked the appellant to identify the legal and factual errors she alleged were contained in the Tribunal’s decision and to which she was referring in this ground. Apart from reiterating the point she had earlier made that she did not want to return to Malaysia because she felt it was unsafe to do so, the only matter she raised was the Tribunal’s decision not to contact her former employer. As the primary judge observed, the Tribunal dealt with the issue at [52]–[53] of its reasons. This is what the Tribunal said:

52    The Tribunal notes that the applicant has suggested that the Tribunal should make inquiries to obtain documentation related to this claim. The Tribunal has considered this request but has decided not to make any inquiries. The applicant has not provided specific information with regard to the nature of the documents the Tribunal may be able to obtain or the dates on which the documents may have been sent or received. Nor has she provided specific details as to who may be in possession of those documents. Despite claiming in her written application that she had access to documents to prove her claims, and having been given additional time to submit evidence by the Tribunal, the applicant has failed to provide any evidence in support of this claim herself. The applicant was unable to explain to the Tribunal why she thought the Tribunal would be in a better position to obtain any relevant evidence.

53    Generally speaking, the Tribunal is not obliged to investigate claims by making inquiries outside the material presented to it by the applicant. The High Court has, however, commented that it may be that failure to make an obvious inquiry about a critical fact, the existence of which is readily ascertained, could, in some circumstances, constitute a failure to review. The Tribunal is not satisfied, in the circumstances of this case, that there is an obvious inquiry or any information that could be readily ascertained by the Tribunal.

34    As the primary judge also observed, the reference by the Tribunal to the High Court’s comment is a reference to the Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123; 259 ALR 429; 111 ALD 15 where at [25] the Court said:

The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

35    The appellant informed the Tribunal in a letter dated 7 June 2017 that she had twice contacted her employer seeking permission to obtain her “evidence”, but that the officer in charge of her file was on leave. She requested additional time to submit “the evidence” and on 9 June 2017 the Tribunal granted her request, allowing a further 12 days to enable her to do so. The day before the time elapsed, the appellant emailed the Tribunal to advise that, despite several attempts to contact her employer, she had been unsuccessful. She suggested that the Government could contact the Malaysian Embassy to help her retrieve her documents. The email included details of the address, email, phone and fax numbers of her employer.

36    On the material before the Court, however, it appears that the appellant did not provide the information the Tribunal said was lacking. The appellant did not identify either the documents she indicated were in her employer’s possession or the dates on which they were allegedly sent or received. Nor did she provide the name of the person who was likely to be in possession of them. Given the passage of time since the offending conduct was said to have taken place, the dates, in particular, were of some importance.

37    Although the Tribunal had both the power and the means to do so, I am not satisfied, on the circumstances that presented themselves to the Tribunal, that its decision to decline to undertake inquiries of its own to obtain “the evidence” constituted a failure to review. For completeness, lest it be thought that the first ground of appeal was also directed to this issue, I do not regard the Tribunal’s conduct in this respect to be manifestly unreasonable.

38    For all these reasons the appeal should be dismissed with costs.

Associate:

Dated:    26 July 2019