Federal Court of Australia

ADA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 371

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, such costs to be fixed in the sum of $4,853.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an appeal against orders made by the Federal Circuit Court of Australia on 6 August 2020 dismissing the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Protection (Class XA) (Subclass 866) (Permanent) visa (protection visa) under s 65 of the Migration Act 1958 (Cth).

2    The appellant is a citizen of Ghana. She arrived in Australia in June 2011 at the age of 16 as a dependant on her sponsored mother’s Prospective Marriage (Class TO) (Subclass 300) visa. The appellant applied for a protection visa in December 2014. The primary claim for protection set out in the appellant’s application was that she feared that if she were to return to Ghana, her family would perform female genital mutilation (FGM) on her.

3    In January 2016, a delegate of the Minister refused to grant the appellant a protection visa. The appellant lodged an application with the Tribunal for review of the delegate’s decision. The appellant attended and gave evidence at a hearing before the Tribunal in October 2017.

4    In December 2017, the Tribunal affirmed the delegate’s decision to refuse to grant the appellant a protection visa. The appellant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

5    In August 2020, the primary judge dismissed the application for judicial review. The appellant now appeals the primary judge’s decision in this Court on the basis of one ground of review, namely:

1.    The Court erred when it held that ‘the assertion that the Applicant's mother had undergone FGM at the age of 16 was never identified by the Applicant as the basis, either squarely, expressly or implicitly, articulated or unarticulated, of her claim for protection.’

Particulars

a.     In the particular circumstances of this case, any findings regarding the Appellant's FGM claims must be considered in conjunction with the assertion that the Appellant's mother had undergone FGM at the age of 16.

b.     The Appellant's FGM claims and the assertion concerning her mother’s FGM experience are explicitly linked.

The Tribunal’s decision

6    At [12] of its reasons, the Tribunal summarised the appellant’s claims for protection as follows:

She was born on [redacted] June 1995 and is a citizen of Ghana.

She came to Australia with her mother who was sponsored by her husband. Prior to leaving Ghana her family wanted to perform female genital mutilation (FGM) on her. Her mother intervened and prevented them from doing so. Her mother has now changed her mind and wants her to return to Ghana and have FGM performed on her.

Her mother has connived with the rest of her family members to have FGM performed on her if she returns to Ghana. Her mother informed the Department that she was not her daughter in an attempt to force her to return to Ghana. This lead to the breakdown in the relationship between her mother and her step-father.

She fears that if she returns to Ghana her family will perform FGM on her. It is customary that all young girls in the tribe have to undergo this practice. Mothers who prevent their daughters from undergoing such practises are cursed so mothers give into pressure from elders in order to avoid being cursed.

The authorities cannot protect her if she returns to Ghana. Children are vulnerable and if their parents cannot protect them it is a pity. The government and other security agencies do not stand in the way of customary practices because they are part of life in society.

7    The Tribunal noted at [13] that it had been provided with a statutory declaration of the appellant’s step-father, the first two paragraphs of which stated as follows:

I sponsored my ex-wife [the appellant’s mother] and her daughter, [the appellant]. We were having a blissful marriage life and things were ok for us. We have mapped our future ahead of us and are working tirelessly to achieve our goals in life. All of sudden, our life were torn apart owing to my ex-wife attitudes and behaviour. As usual, all new migrants who settled in a new country will obviously encounter difficulties be it financial, jobs, cultural differences and plethora of other problems.

My ex-wife attributed all these problems down to her initial resistance of not allowing her daughter to undergo FGM (female genital mutilation). She therefore confided in me her desire to send her to Ghana for such an operation. She even revealed to me she had her FGM done at the ripe age of 16 and the operation could be done on girls as old as 22 years. I immediately brushed aside her concern and said to her as a Christians we do not belief in such practices. I made it known to her that there is no way [the appellant] would leave Australia as long as I am married to you.

8    This statutory declaration forms the foundation of the argument on appeal that a claim of the appellant had not been properly addressed by the Tribunal. It is important to note that at [32] of its reasons, the Tribunal comprehensively rejected the evidence, saying:

The Statutory Declaration dated 28 January 2016 from the applicant’s step father, [redacted], was prepared for the purpose of providing evidence to support the applicant’s claims. It is self-serving, untested, inconsistent with the applicant’s mother’s evidence [to the Department] and is not from an independent witness. The Tribunal places no weight on it.

9    As addressed later, the Tribunal rejected on the basis of credit the evidence of the appellant that her mother had changed her mind: see [14] below. The mother did not give evidence at the Tribunal hearing.

10    At [18]–[41] of the Tribunal’s reasons, the Tribunal addressed the evidence that the appellant gave in her visa application and at the Tribunal hearing. At [19], the Tribunal recorded that the appellant had stated during the hearing that “her mother had undergone FGM at the age of 16 years and was opposed to her undergoing FGM”. At [30], the Tribunal described the contents of the statutory declaration prepared by the appellant’s step-father and, as explained above, rejected that evidence at [32] of its reasons.

11    At [42]–[46], the Tribunal had regard to the country information in relation to FGM in Ghana and, in particular, the Krobo tribe. The Tribunal made the following findings based on that country information:

(a)    the practise of FGM in the Krobo tribe is negligible: see [50] of the Tribunal’s reasons;

(b)    it was not customary that all young girls in the Krobo tribe undergo FGM: see [50] of the Tribunal’s reasons;

(c)    the practice of FGM is most prevalent in the north west and north east regions of Ghana, but Accra is in the south of Ghana: see [50] of the Tribunal’s reasons;

(d)    legislation was passed in Ghana in 1994 to criminalise the practice of FGM with the penalties for performing FGM being increased in 2007, and the Ghanaian authorities have successfully prosecuted people who breached Ghanaian law and have performed FGM: see [51] of the Tribunal’s reasons; and

(e)    accordingly, it was not accepted “that the Ghanaian authorities cannot or will not protect the applicant if she returns to Ghana and that the government or other security agencies do not stand in the way of customary practices because they are part of life in society”: see [51] of the Tribunal’s reasons.

12    The Tribunal highlighted a number of inconsistencies in the appellant’s evidence, which were raised with her during the Tribunal hearing. At [47], the Tribunal stated that it found “aspects of her evidence to be vague, contradictory, implausible, unconvincing and inconsistent with country information”. The Tribunal found that the appellant was not a witness of truth and that she fabricated her material claims for the purpose of obtaining a protection visa: [47] of the Tribunal’s reasons.

13    The Tribunal accepted the following aspects of the appellant’s claim:

(a)    the appellant was born in June 1995 in Accra, Ghana, and is a member of the Krobo tribe: see [48] of the Tribunal’s reasons;

(b)    the appellant lived in Accra from birth until she left Ghana in June 2011 to travel to Australia and went to school in Accra: see [48] of the Tribunal’s reasons. This finding was consistent with the appellant’s protection visa application form, but involved a rejection of her assertion at the Tribunal hearing that she had left Accra when she was eight years of age to go to her father’s hometown of Pinpinsu in the eastern region of Ghana: see [21]–[23] of the Tribunal’s reasons;

(c)    the appellant’s mother and father in Ghana opposed FGM which she had not undergone in Ghana: see [48] of the Tribunal’s reasons;

(d)    the appellant did not know any girls in Ghana who had undergone FGM: see [50] of the Tribunal’s reasons;

(e)    the appellant’s relationship with her mother had broken down and she has not had any contact with her since 2014: see [52] of the Tribunal’s reasons; and

(f)    the appellant has maintained a relationship with her biological father, who lives in Accra and works as an accountant for a shipping company: see [52] of the Tribunal’s reasons.

14    The Tribunal did not accept that:

(a)    prior to the appellant’s departure from Ghana members of her extended family wanted to perform FGM on her but were prevented from doing so by her mother: see [49] of the Tribunal’s reasons. See also [33]–[37] of the Tribunal’s reasons;

(b)    the mother of the appellant had changed her mind and wants her to return to Ghana to undergo FGM: see [49] of the Tribunal’s reasons. See also [33]–[37] of the Tribunal’s reasons (relevant to this finding is the statutory declaration of the appellant’s step-father: see [8] above);

(c)    the appellant’s mother has connived with the rest of the appellant’s family members or members of her father’s extended family to have FGM performed on her if she returned to Ghana: see [49] of the Tribunal’s reasons. See also [33]–[37] of the Tribunal’s reasons;

(d)    the appellant’s father is in debt and she sends him money: see [52] of the Tribunal’s reasons. See also [39] and [41] of the Tribunal’s reasons; and

(e)    the appellant will have nowhere to live in Ghana or she will not be able to sustain herself if she returns to Ghana in the reasonably foreseeable future: see [52] of the Tribunal’s reasons. See also [39] and [41] of the Tribunal’s reasons.

15    The Tribunal, at [53] and [57] of its reasons, concluded that the appellant did not satisfy the definition of refugee in s 5H of the Act and there was not a real risk that she would suffer significant harm as defined in s 36(2A) of the Act.

The Federal Circuit Court decision

16    The appellant’s amended application in the Federal Circuit Court contained one ground of appeal, namely that the Tribunal failed to consider and deal with all the essential elements of the appellant’s claims for protection. The essential elements were identified by the appellant as follows:

i.    The Applicant is a member of the Krobo tribe in Ghana (Paragraph 19 of the Tribunal’s decision record);

ii.     Female Genital Mutilation (FGM) is practised in the Krobo Tribe even though it is illegal to [do] so in Ghana (paragraph 19 of the Tribunal decision record);

iii.     The Applicant’s mother, a Ghanaian national, underwent FGM at the age of 16 (paragraph 19 of the Tribunal decision record);

iv.     Prior to the Applicant leaving Ghana for Australia, when she was about 16 years old, her extended family attempted to perform FGM on her (paragraph 20 of the Tribunal decision record);

v.     The Applicant’s mother connived with relatives in Ghana to have FGM performed on the Applicant if she returned to Ghana (paragraph 34 of the Tribunal’s decision record);

vi.     If the Applicant returns to Ghana, the Applicant would have nowhere to live, have difficulties finding a job and she would be unable to sustain herself (paragraph 38 of the Tribunal’s decision record).

17    Of these elements, the appellant submitted that the Tribunal failed to deal with element (iii). The appellant further submitted that the appellant had claimed to be a member of particular social groups, being “women in Ghana forced to undergo FGM” and/or “women in Ghana whose mothers had undergone FGM and who were forced to undergo FGM”.

18    After setting out the relevant legal principles, the primary judge stated at [27]:

In my view this Ground is not made out because the assertion that the Applicant’s mother had undergone FGM at the age of 16 was never identified by the Applicant as the basis, either squarely, expressly or implicitly, articulated or unarticulated, of her claim to protection. Her claim to protection was never advanced or argued on the footing that her mother’s experiences had any implications for the Applicant and in my view the Ground seeks to impermissibly recast the Applicant’s claim to protection on a basis that was not actually made, either before the Delegate or the Tribunal. …

19    At [28]–[30], the primary judge highlighted that: the appellant had not mentioned that her mother had undergone FGM at 16 in her visa application; the appellant’s step-father’s statutory declaration referred to her mother in the context of justifying that “girls as old as 22 years” underwent FGM; and at the Tribunal hearing the appellant signified that the fact her mother underwent FGM was a reason that her mother had been previously opposed to the appellant undergoing FGM. In this context, the primary judge concluded at [30]–[31]:

30. In other words, [the appellant’s step-father’s] evidence in his Statutory Declaration was that the Applicant’s mother referred to having undergone FGM at 16 years in justification of a young lady of around the Applicant’s age still being able undergo FGM, whereas the Applicant at the Tribunal hearing stated that the fact that her mother had undergone FGM at the age of 16 years had motivated her mother’s opposition to the Applicant undergoing FGM. Neither of these references bore in any relevantly material way on the Applicant’s claim to fear that she herself personally would be forced to undergo FGM if she returned to Ghana.

31. In my view, the topic of the Applicant’s mother having undergone FGM at the age of 16 years in Ghana was never argued or advanced as material to the Applicant’s claim to protection, and hence the Tribunal in its Decision Record made no further reference to the topic because it did not consider it to be material to its decision and no jurisdictional error was committed thereby. The Tribunal meaningfully recognised and considered the Applicant’s claim to protection as being that of a woman who faced FGM if she returned to Ghana perforce of her family there. That claim was rejected on the basis of findings and reasoning which it is not suggested were irrational, illogical, legally unreasonable or without an intelligible justification.

20    Further, the primary judge held that the ground would also fail because the appellant’s claim to fear serious and significant harm “was rejected by the Tribunal root and branch in factual findings which necessarily and inevitably denied any other basis for protection”, citing Griffiths J in BGN16 v Minister for Home Affairs [2019] FCA 78 at [28]–[29]. The primary judge concluded that, in these circumstances, it was unnecessary for the Tribunal to go further to respond to any claim by the appellant that she was a member of a particular social group.

Consideration

21    The Tribunal is bound to address claims for protection arising from the facts as articulated by the applicant or as fairly arising from the material as presented: ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44 at [71].

22    The answer to the question whether this duty has been fulfilled is not to be found in any form of arid categorisation and definition. It will be found in a fair assessment of all the material, how the claims are propounded and articulated and how all the material can be fairly said to inform a basis for protection. In Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136, I said at 152 [42] (Spender J agreeing at [1]; see also 140 [13] per Merkel J):

The requirement to review the decision under s 414 of the Migration Act 1958 (Cth) (the Act) requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act, eg ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in reg 866 to the “claims” of the applicant eg 866.211, make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.

23    See also the principles lucidly articulated by the Full Court in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at 509 [18], citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at 18 [58].

24    In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at 394 [24]–[25], Gummow and Callinan JJ put the matter thus:

[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the tribunal. This followed from the language of s 476(2)(a) of the Act (as it was when the applications were made) which provided as follows:

(2) The following are not grounds upon which an application may be made under subsection (1):

(a)     that a breach of the rules of natural justice occurred in connection with the making of the decision . . .

[25] The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution. …

25    Contrary to the submissions of the appellant, her protection claims were not specifically linked to her mother’s experience. The appellant first claimed that her mother’s experience of FGM was why she had stopped the appellant’s family from performing FGM on the appellant by bringing her to Australia: see [19]–[20] of the Tribunal’s reasons. The statutory declaration of the appellant’s step-father (which was comprehensively rejected) placed the mother’s experience as a reason for her wanting the appellant to return to Ghana. The change in evidence of the appellant as to the mother’s position was rejected on the basis of credibility and the country information cited at [42]–[46] of the Tribunal’s reasons.

26    In these circumstances it is not correct to say that there was some claim articulated or unarticulated that has not been dealt with. The appellant’s mother gave no evidence. The evidence of the appellant and her step-father was rejected. In that context it was not necessary for the Tribunal to make any specific findings about whether the appellant’s mother had experienced FGM. The Tribunal dealt with all the evidence and country information, leaving no claim unattended by consideration.

27    The argument that there was a failure to address the membership of particular social groups, being “women in Ghana forced to undergo FGM” and/or “women in Ghana whose mothers have undergone FGM and who are forced to undergo FGM”, cannot withstand the Tribunal’s clear and comprehensive attention to the country information. Nor were the claims articulated in this way; nevertheless, they can be seen to be met substantially by the findings based on country information: see BGN16 v Minister for Home Affairs [2019] FCA 78 at [28]–[31], citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at 354 [95] per McHugh, Gummow and Hayne JJ.

28    The comprehensive rejection of the appellant’s evidence as “vague, contradictory, implausible, unconvincing and inconsistent with country information”, the rejection of the step-father’s statutory declaration, the (perhaps understandable) absence of the appellant’s mother’s evidence, and the comprehensive treatment of the country information can be seen to address and meet any now-articulated claim for protection.

29    For these reasons the appeal should be dismissed.

30    At the hearing of the appeal, the Minister sought an order under rule 40.02(b) of the Federal Court Rules 2011 (Cth) that the Minister’s costs of the appeal be fixed in the sum of $4,853 or such other sum as the Court thinks fit. The Minister read an affidavit in support of this application which was affirmed by Ms Pieri, a solicitor employed by MinterEllison. At [8] of her affidavit, Ms Pieri estimated that the total fees charged by MinterEllison to the Minister for the appeal were approximately $6,471 (excluding GST). Ms Pieri estimated at [12] of her affidavit that the Minister was entitled to claim that the appellant is liable to pay, on a party/party basis, costs in the amount of $4,853. The appellant’s solicitor, who appeared on behalf of the appellant at the hearing, raised no objection to Ms Pieri’s affidavit. In these circumstances, I am minded to fix the Minister’s costs in the sum of $4,853.

Associate:

Dated:    16 April 2021