FEDERAL COURT OF AUSTRALIA

DFY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1226

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

1    This is an appeal from a judgment of the Federal Circuit Court delivered on 1 November 2019 which dismissed an application to quash a decision of the Administrative Appeals Tribunal (Tribunal) made on 30 July 2019 (primary decision): DFY19 & Ors v Minister for Immigration & Anor [2019] FCCA 3137. The Tribunal affirmed a decision by a delegate of the Minister made on 12 April 2019 to refuse to grant the appellants protection visas under the Migration Act 1958 (Cth) (Migration Act).

2    The protection visa application was made by the first appellant, and included as members of the first appellant’s family unit the third and fourth appellants (the appellant children), and an application for a Protection visa (subclass 866) by the second appellant, as the father of the appellant children.

3    The appellants raised two grounds of appeal asserting error in the primary decision. These were that the primary judge erred by failing to find that the Tribunal had made a jurisdictional error, by:

(1)    failing to make a finding as to the reasonableness and practicability of the appellants living in another state of Nigeria away from the first appellant’s family; or

(2)    failing to consider an important item of evidence, or failing to engage in proper, genuine and realistic consideration of the same.

4    Similar grounds were considered and rejected by the Federal Circuit Court.

Background

5    The first respondent explained the background to these proceedings in its outline of submissions as follows:

2.     The first appellant is a female citizen of Nigeria who on 22 January 2016 arrived in Australia on a student visa with her husband … and their daughters … The appellants are Muslims of Yoruba ethnicity.

3.     Relevantly, prior to making their applications for protection visas, on 3 August 2017 the second appellant applied for a regional skilled (subclass 187) visa, which was refused on 12 November 2017 … on 21 November 2017 the second appellant was charged by NSW Police for indecent assault against a victim under the age of 16 years … On 24 January 2018 the second appellant was convicted and sentenced to 18 months’ imprisonment.

…

4.     On 2 May 2018 the first appellant applied for a protection (subclass 866) visa. The third and fourth appellants were included in the application as members of the first appellant’s family unit … The second appellant was added to the protection visa application as a secondary application following his release from prison … The first appellant claimed to fear harm if returned to Nigeria on the basis that she had been ostracised from her husband’s family due to their opposition to the marriage, and she feared harm from her husband’s family. The first appellant also feared that if she returned to Nigeria the second appellant’s family would take her daughters from her and that his family would harm the third and fourth appellants by subjecting them to female genital mutilation [FGM]. Subsequently, the appellants claimed that the fear was exacerbated by the second appellant’s conviction.

…

5.     On 12 April 2019 a delegate of the Minister refused to grant the appellants protection visas.

…

6.     On 15 April 2019 the first, third and fourth appellants applied to the Tribunal for review of the delegate’s decision. On 23 April 2019 the second appellant made a separate review application. On 20 May 2019 the Tribunal invited the appellants to a combined hearing, which … took place on 20 June 2019.

7.     On 30 July 2019 the Tribunal affirmed the [delegate’s] decision … The Tribunal found the first and second appellants not to be credible witnesses, and set out detailed reason[s] in respect of each appellant for its conclusions: [58]-[120]. It rejected the appellants’ claims to fear harm from each other’s families. The Tribunal also was not satisfied that the third and fourth appellants were at risk of harm in relation to being subjected to [FGM]. The Tribunal was not satisfied the appellants were entitled to a protection visa under either s 36(2)(a) or s 36(2)(aa) of the [Migration Act].

…

8.     The appellants sought judicial review of the Tribunal’s decision in the Federal Circuit Court. In an amended application, the appellants advanced two grounds of review. First, that the Tribunal fell into jurisdictional error by failing to consider or engage in proper, genuine or realistic consideration of an important item of evidence, in particular the possibility that the first and second appellants would face pressure from their relatives to have [FGM] performed on the daughters and whether, as a consequence of that pressure, the first and second appellants might succumb. Secondly, that the Tribunal fell into jurisdictional error by failing to make a finding as to the reasonableness and practicability of the appellants living in another state of Nigeria away from the first appellant’s family.

9.     The primary judge rejected the first ground: [primary decision] [50]-[55]. The appellants had submitted, in particular by reference to paragraph [126] of the Tribunal’s reasons, that the evidence before the Tribunal supported the possibility that the first and second appellants would face pressure from relatives to have [FGM] performed on the third and fourth appellants, which pressure may not be successfully resisted: [primary decision] [52]. The primary judge found that the Tribunal considered and made adverse findings in relation to the third and fourth appellants’ grandparents being able to inflict [FGM] on them against the wishes of the parents: [primary decision] [53]. The primary judge did not accept that the Tribunal’s findings at [126] of its reasons was as constrained as submitted by the appellants: [primary decision] [54]. His Honour noted the appellants’ concession made by their solicitor however that no claim or submission had been advanced that the resolve of the first or second appellant would wilt: [primary decision] [55].

10.     The primary judge also rejected the second ground: [primary decision] [56]-[58]. The appellants had sought to argue that the Tribunal had been required … to consider whether it was reasonable and practicable for the appellants to live in another state of Nigeria. His Honour rejected that proposition, finding that there was no requirement in this case for the Tribunal to have engaged in such an assessment because the Tribunal had not concluded that the appellants’ home area was one in respect of which the appellants had a well-founded fear of persecution or a fear of significant harm: [primary decision] [57]-[58]. The appellants had sought to rely on the principles espoused in CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 … The primary judge found that case to be distinguishable on its facts: [primary decision] [58].

Consideration

Ground 1

6    In respect of ground 1, the appellants said, citing CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; (2018) 260 FCR 134 (CSO15) at [42]:

The primary judge erred by holding that the Tribunal has not made a jurisdictional error by failing to make a finding as to the reasonableness and practicability of the [applicants] living in another state of Nigeria away from the [first applicant’s] family.

7    As noted above, the primary judge at [57]-[58] rejected a similar ground put by the appellants on the basis that there was no requirement for the Tribunal to have made such a finding.

8    The first respondent submitted in its written submissions that the primary judge was correct to conclude that it was “unnecessary for the Tribunal to consider the question of relocation to [another] place within Nigeria”. I accept this submission, which is consistent with the reasoning in CSO15

9    The Full Court in CSO15stated at [45]:

…a decision-maker will not perform the task required of her or him if she or he simply searches for ‘a place’ within a country of nationality where a particular applicant will not have a well-founded fear or persecution. The decision-maker must assess, on the material before her or him, the place or places to which an individual is likely to return. The first step of the decision-maker’s assessment is to make findings about, at least, one of those places.

10    The Full Court then explained in CSO15 at [47]:

It is only if the place or places to which an individual is likely to return are places in which the person has a well-founded fear of persecution or faces a real risk of significant harm that a decision-maker must look at any other places in the individual’s country of nationality where neither of those kinds of risks exist … These must be places where it is reasonable and practicable to expect that individual to re-locate.

(Original emphasis).

11    Accordingly, a reviewable error will only arise if the Tribunal has either failed to consider the place to which an individual is likely to return, or, if this place is found to give rise to the applicant’s well-founded fear of persecution or risk of significant harm under the complementary protection criteria, fails to consider whether the individual can reasonably and practicably return to an alternative safe location.

12    As the Minister submitted, however, the Tribunal’s reasons do not expose an error of the kind identified in CSO15. Given its adverse credibility findings against the first and second appellants the Tribunal was not satisfied that the family members of either of the appellant parents had objected to the marriage or ostracised the appellant parents or had inflicted an assault upon the second appellant: [122]. Nor did the Tribunal accept that the second appellant’s conviction gave rise to a relevant risk of harm: [123]. The Minister continued, submitting in these terms:

16.     The Tribunal also considered country information concerning the risk of harm to the third and fourth appellants from their extended families in relation to the infliction of female genital mutilation on the children: [126]-[127]. The Tribunal was not satisfied that any person had sought to inflict harm of this kind on the children, and found that neither the first nor second appellants had any desire to inflict this kind of harm on the children: [126]. The Tribunal accepted the existence of customary law in Nigeria and the prevalence of female genital mutilation, but in the absence of any independent evidence was not satisfied there existed customary law in Nigeria that could be enforced against the appellant parents to cause female genital mutilation to be inflicted upon the children: [127]. The Tribunal did not consider the second appellant’s criminal conviction impacted on this assessment of risk.

17.     In light of its findings that the appellants did not have either a real chance of suffering serious harm under s 36(2)(a) of the Act, or a real risk of suffering significant harm under s.36(2)(aa) of the Act, it was unnecessary for the Tribunal to consider the question of relocation to a place within Nigeria where the appellants would be safe.

13    I accept these submissions. Given that the Tribunal had found no relevant risk of harm in the places to which the appellants were likely to return, the Tribunal was not obliged to consider the issue of relocation.

Ground 2

14    In respect of ground 2, the appellants contended that:

The primary judge erred by holding that the Tribunal has not made a jurisdictional error by failing to consider an important item of evidence or failing to engage in proper, genuine and realistic consideration with respect to the same.

(a)    The Tribunal may make a jurisdictional error where it fails to consider an important item of evidence: see, for example, Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 [; (2014) 309 ALR 67] (SZSRS) at [52]-[56];

(b)    The Tribunal may make a jurisdictional error by failing to give proper, genuine and realistic consideration to the [applicant’s] case, in the sense of active intellectual engagement: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC [107; (2017) 252 FCR 352] (Carrascalao) at [45];

(c)    The Tribunal found at paragraphs 47-54 of its decision that country information indicated that, while it was unusual for [FGM] to be inflicted on children contrary to the wishes of their parents, relatives may apply pressure on parents to have FGM performed;

(d)    The Tribunal found at paragraph 126 of its decision that the [first and second appellants] had no desire to have FGM performed upon their children and the FGM would not be inflicted on their children against their will.

(e)    In making this finding, the Tribunal did not relevantly consider or engage with the possibility that the [first and second appellants] would face pressure from their relatives to have FGM performed and whether, as a consequence of that pressure, the [first and second appellants] might succumb to having FGM performed upon their children.

Failure to consider an important item of evidence

15    In written submissions in response to this ground the respondent submitted:

19.     There is no merit to the ground. The primary judge was correct to reject it. From the manner in which the point appears to have been argued before the Federal Circuit Court, the appellants’ contention was not that a piece of evidence was not considered by the Tribunal, but rather that the Tribunal, by reference to the claims and evidence before it, failed to consider an aspect of the appellants’ claimed fear of harm, which was that the appellant parents would face pressure from relatives in relation to inflicting female genital mutilation on the third and fourth appellants and that the appellant parents might not be able to resist that pressure.

20.    The short answer to the point is that the Tribunal engaged with the appellants’ claims as advanced and rejected those claims. The Tribunal expressed significant concerns with the credibility of the first and second appellants. The Tribunal’s concerns regarding the first appellant’s credibility were set out at [58]-[99]. The Tribunal’s concerns regarding the second appellant’s credibility were set out at [101]-[120]. The Tribunal expressed concern with the developing nature of the appellant parents’ protection claims, internal inconsistencies, and with the delay in applying for protection …

21.     No particular issue is taken on the appeal with the Tribunal’s credibility findings, and no point was taken below.

22.    It must also be taken into account that the Tribunal in its assessment of the appellants’ claims went beyond merely rejecting them by reason of its adverse view of the parents’ credibility, but it took into account what arose from the country information before it concerning the practice of female genital mutilation in Nigeria and customary law relating to the practice: [126]-[127].

16    I accept these submissions. The appellants’ contention that the circumstances of the present application are analogous to those in SZSRS cannot be accepted.

17    The proposition from SZSRS the appellants rely on in (a) cites, at [55], the decision of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT).

18    The Court in both cases found that the Tribunal had not considered an item of evidence which went to a matter foundational to the applicant’s claim, and that such failure, in a context where an adverse finding was subsequently made, was a jurisdictional error. In SZRKT, Robertson J said at [119]-[120]:

The key features of the present case … are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal’s rejection of the applicant’s claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal’s approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.

The Court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.

19    Relying on Robertson J’s statement extracted above, the Full Court in SZSRS stated that:

56.     Virtually the same analysis is apt in the present case. Here, the Tribunal rejected the father’s evidence that he and his family were Christians and that SZSRS had been baptised. It did so on the basis of ‘the conflicting oral and documentary evidence’ as to their Christian denomination and SZSRS’s baptism. As Robertson J observed in SZRKT, the Court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. If, after addressing the Reverend Lee’s letter, the Tribunal had any nagging concerns, it could have raised them with the father or made further inquiries. The existence of possible ambiguities in the Reverend Lee’s letter, however, does not detract from its importance. The Reverend Lee’s letter was capable of reconciling the supposedly conflicting oral and documentary evidence that apparently troubled the Tribunal. If accepted, it could have alleviated the Tribunal’s concerns about the different nomenclature in the various certificates, all of which carried the signature of Reverend Lee. Consequently, it was centrally important to the Tribunal’s decision-making process.

57.     It follows that the primary judge did not err in finding that, by failing to consider it, the Tribunal committed a jurisdictional error.

58.     We should emphasise here that in coming to this conclusion, we do not endorse the primary judge’s statement of principle at [15] [that ‘if the Tribunal fails to consider evidence which might have had a bearing on the outcome of the review, in that the evidence was not so insignificant that failure to take it into account could not have materially affected the decision, and where such failure could possibly have deprived an applicant of a successful outcome to his or her application for review, then that amounts to a failure to conduct the review in a manner required by the Act and is properly characterised as a jurisdictional error’] … We agree with the Minister’s submission that it is possible to read paragraph [15] as amounting to a statement that jurisdictional error will necessarily be established if the ignored material is relevant (‘might have had a bearing on the outcome of the review … not so insignificant that failure to take it into account could not have materially affected the decision’). That puts the matter too widely. The primary judge appears to conflate the question of whether the Tribunal made a jurisdictional error with whether relief should be refused in the exercise of the Court’s discretion. As Robertson J made clear in SZRKT (at [97] and [122]), merely to ignore relevant material does not establish jurisdictional error. In relation to similar reasoning by the Federal Magistrate whose judgment was under appeal in SZRKT, Robertson J said:

122.    For these reasons, although I do not agree with the reasoning of the federal magistrate I find that his Honour’s conclusion and orders were correct. In particular, the proposition that it is always a jurisdictional error to ignore ‘relevant material’ is too widely expressed as is the reasoning in [36] of the federal magistrate’s reasons that it is always jurisdictional error unconsciously to ignore corroborative evidence.

59.     We again respectfully agree. If the reasoning of the primary judge in paragraph [15] of the judgment amounts to a statement that it is always a jurisdictional error to ignore relevant material or corroborative evidence, we do not agree with that reasoning. However, for the reasons we have given, his Honour’s conclusion and orders were correct.

20    The circumstances of the present case do not involve the Tribunal’s failure to consider an important item of evidence. The appellants’ claim is better understood in the terms put by the respondent, that is, as a claim “that the Tribunal, by reference to the claims and evidence before it, failed to consider an aspect of the appellants’ claimed fear of harm, which was that the appellant parents would face pressure from relatives in relation to inflicting female genital mutilation on the third and fourth appellants and that the appellant parents might not be able to resist that pressure”.

21    So understood, the appellants’ claim must fail. As submitted by the respondents, the Tribunal clearly considered, on the materials before it, the appellants’ claims as advanced, and rejected them. It did not fall into any error in doing so.

Failure to genuinely consider the appellants’ case

22    The second ground also referred to the principle that jurisdictional error will occur where a claim is not given “proper, genuine and realistic consideration”: Carrascalao.

23    The respondent identified that a failure of the kind identified in Carrascalao would occur if the Tribunal had “failed to consider an aspect of the appellants’ claimed fear of harm, which was that the appellant parents would face pressure from relatives in relation to inflicting female genital mutilation on the third and fourth appellants and that the appellant parents might not be able to resist that pressure.”

24    The respondent submitted that such failure had not occurred for the reasons extracted above, that is, since “the Tribunal engaged with the appellants’ claims as advanced and rejected those claims”, and that the Tribunal:

in its assessment of the appellants’ claims went beyond merely rejecting them by reason of its adverse view of the parents’ credibility, but it took into account what arose from the country information before it concerning the practice of female genital mutilation in Nigeria and customary law relating to the practice: [126]-[127].

25    That submission is consistent with the statement in Carrascalao, in which the Court stated at [44]-[45] (per Griffiths, White and Bromwich JJ):

44.    … the common denominator is that the decision-maker must engage in an active intellectual process in giving consideration to the relevant matters or criteria.

45.     Subsequent cases have endorsed the principle that when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria … This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria.

26    I accept that the Tribunal gave proper, genuine and realistic consideration to the appellants’ claim that that the appellant parents would face pressure from relatives in relation to inflicting female genital mutilation on the third and fourth appellants and that the appellant parents might not be able to resist that pressure. Accordingly, the appellants’ claim that the Tribunal erred in this respect must fail.

27    For these reasons the appellants have not established any error by the primary judge and the appeal must be dismissed, with costs.

Associate:

Dated:    26 August 2020

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