Federal Court of Australia

BUO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1548

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The Appellant pay the First Respondent’s costs of the appeal, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.

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

REASONS FOR JUDGMENT

ANDERSON J

introduction

1    On 21 November 2014, the Appellant applied to the First Respondent (Minister) for a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (Act). The Appellant’s reason for claiming protection was that she held fears for her life from her former husband in India, as well as from her family and society who would not accept her re-marriage to an Australian citizen. On 28 May 2015, a delegate of the Minister refused the application.

2    The Appellant applied to the Second Respondent (Tribunal) for review of the decision. On 30 March 2017, the Tribunal affirmed the decision to refuse the visa and gave reasons.

3    As recorded in the Tribunal’s Statement of Reasons at [21] and [24], the Appellant gave the following evidence about her treatment by her husband :

21.     The [Appellant] told the Tribunal that she became pregnant ten months after their marriage and her former husband didn’t want to keep the baby, demanding that she terminate the pregnancy without giving her any reason. She gave evidence that she had the termination in November 2012. When she came home after having the termination, she asked him why they couldn’t keep the baby and he told her that he had no student visa and no visa application in progress. They had a big fight, she told him she didn’t trust him and that he had deceived her and it caused a big crack in their relationship. She accused him of ruining her life. …

…

24.     The [Appellant] claims that after the termination of her pregnancy in November 2012, her former husband started to beat her. When asked how often that occurred, she said he would drink heavily and then beat her. When asked how long his violence continued, she stated that it continued for 6-7 months. When it was pointed out to her that she had given evidence that her husband was detained and deported from Australia only a month after her termination, the [Appellant] stated that she had been mistaken in her earlier answer and that the violence continued for one month until her former husband was detained but that it would have continued had the police not caught him.

4    On 25 May 2022, the Federal Circuit and Family Court of Australia (Division 2) dismissed the Appellant’s application seeking judicial review of the Tribunal’s decision: BUO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 398 (Primary Judgment).

5    By Notice of Appeal dated 21 June 2022, the Appellant advances the following two grounds of appeal:

(1)    The primary judge erred in failing to find that the Tribunal’s decision was affected by jurisdictional error because the Tribunal reasoned in a manner that was internally inconsistent such that it was illogical or irrational.

(2)    The primary judge erred in failing to find that the Tribunal’s decision was affected by jurisdictional error because the Tribunal failed to consider all of the Appellant’s claims and/or their component integers.

statutory framework

6    The criteria for granting a protection visa are contained in s 36 of the Act. Relevantly, the Tribunal was required to determine whether the Appellant satisfied the requirement in either s 36(2)(a) or (aa); that is, the Appellant is a person to whom Australia owes protection obligations either under the “refugee” criterion, or on “complementary protection” grounds.

7    In respect of the “refugee” criterion in s 36(2)(a), Australia owes protection obligations to refugees within the meaning of Article 1 of the Convention Relating to the Status of Refugees. Article 1A(2) relevantly defines a refugee as any person who:

... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

8    In respect of the “complementary protection” grounds in s 36(2)(aa), a person who is found not to be a refugee may nonetheless meet the criteria for a protection visa, if the Minister is satisfied Australia has protection obligations to that person “because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”. “Significant harm” is itself defined in s 36(2A) as follows:

A non-citizen will suffer significant harm if:

(a)     the non-citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non-citizen; or

(c)     the non-citizen will be subjected to torture; or

(d)     the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non-citizen will be subjected to degrading treatment or punishment.

ground 1

9    The Tribunal found in its Statement of Reasons at [40] and [41] that the Appellant’s former husband, JS, had not been violent towards her in the past. The Appellant submits that this conclusion stands in tension with the fact that the Tribunal in its Statement of Reasons at [21] found, or at least did not reject, evidence of the Appellant having undergone a termination of pregnancy after her former husband demanded she undergo this procedure.

10    The Appellant, before the primary judge, submitted that those findings amounted to irrationality or illogicality, relying on the principles in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [131] (Crennan and Bell JJ). In the Primary Judgment, the primary judge relevantly held:

(1)    it was not possible to discern from the material put before the Tribunal that the Appellant sought to rely upon the former husband’s demands that she terminate her pregnancy as giving rise to either a well-founded fear of persecution, or as engaging Australia’s complementary protection obligations (at [34]);

(2)    the Appellant’s case drew a “clear line” between the termination of her pregnancy and the conduct of the former husband following this event (at [35]);

(3)    the Appellant’s description to the Tribunal of the former husband's conduct in relation to the termination was “benign” (at [37]);

(4)    the only claim “substantively advanced” in support of the Appellant’s case was that her former husband had started to beat her after the termination of her pregnancy (at [37]);

(5)    the Tribunal was not obliged to connect the two events or to consider the former husband’s demand to terminate the pregnancy as part of the one factual matrix. In circumstances where the Appellant was represented at all stages of the review, it might be expected that the claim would have been squarely articulated, including with evidence: at [38], citing CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [74] (Thawley J).

11    The Appellant submits that the error of the primary judge was finding a “clear line” between her former husband demanding the termination of the Appellant’s pregnancy, and his physically violent conduct towards the Appellant: Primary Judgment at [35]. The Appellant submits that in so finding, the primary judge did not go on to consider if the Tribunal’s findings were affected by irrationality or illogicality which, given the incongruity of the findings, clearly were irrational or illogical. The Appellant submits that the primary judge’s approach was wrong for the following reasons.

12    Firstly, the Appellant submits that it was artificial to demark a time prior to which the Appellant did not experience family violence from her former husband. No such line was supported by the evidence: the demanded termination occurred on 2 November 2022, and the physical violence commenced immediately. The Appellant notes that the evidence of the Appellant to the Tribunal was that “Family Violence happened to me for 5-6 weeks after 2nd November 2012 to about December 2012”: see Primary Judgment at [36]. The Appellant submits that the concept of family or domestic violence is sufficiently broad to encompass the entirety of the former husband’s conduct towards the Appellant. In this regard, the Appellant refers to the definition of “relevant family violence” in reg 1.21 of the Migration Regulations 1994 (Cth) which includes “conduct whether actual or threatened … that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own well-being or safety. The Appellant also refers to the decision of the Full Court of this Court in Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 170 at [14] (Branson J, Marshall J agreeing) which held that domestic violence comprehends “a wide range of behaviours only some which involve actual or threatened physical harm”.

13    Secondly, the Appellant submits that any analogy to CED15, a case where there was “no evidence” of the allegations, is inapposite. The Appellant submits that the former husband’s demands regarding termination of the Appellant’s pregnancy were both in evidence and the subject of findings by the Tribunal.

14    Thirdly, the Appellant submits that it was immaterial whether the former husband’s demands were “substantively advanced” as the reason Australia owes the Appellant protection obligations. Rather, relevantly illogical or irrational findings might be made “on the way” to the final conclusion: Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [54] (Wigney J).

15    The Appellant submits that for these reasons, the primary judge ought to have found that the Tribunal’s inconsistent findings were an instance of “extreme illogicality” and thereby amounted to jurisdictional error: Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556 at [156] (Griffiths and Moshinsky JJ).

Consideration

16    The difficulty with the Appellant’s submissions is that the Appellant seeks to make a case on judicial review that does not reflect the way in which her claims were advanced before the Tribunal. The Appellant, in her application for a visa or in a statement attached to her visa application, made no mention of being the subject of physical violence by her former husband. Nor did the Appellant mention that her former husband demanded that she terminate a pregnancy in November 2012: AB 113, 114, 140 and 201. Submissions, dated 22 February 2017, made on her behalf to the Tribunal, also made no claim about past violence at all: AB 201-202.

17    On 24 February 2017, the Tribunal wrote to the Appellant in relation to the application for review. The Tribunal noted that, at an earlier hearing before a differently constituted Tribunal in relation to the cancellation of the Appellant’s student visa, the Appellant discussed the termination of her pregnancy in November 2012. The Tribunal sought particulars of the former husband’s violence towards the Appellant following the termination of her pregnancy in November 2012: AB 243. On 14 March 2017, the Appellant’s migration agent provided a response to the invitation to provide particulars. The response did not claim that the former husband had been physically violent prior to the termination. The response claimed that the former husband had been physically violent five to six weeks after 2 November 2012 to about December 2012, that is, after termination of the pregnancy: AB 281.

18    The Appellant at no time maintained a claim that the termination of her pregnancy in early November 2012 was an act of family violence. It was therefore not illogical or irrational for the Tribunal to conclude that the Appellant’s former husband had not been violent towards her prior to the termination of her pregnancy in November 2012.

19    The Tribunal, in its Statement of Reasons at [32], noted that at an earlier hearing before the Migration Review Tribunal on 7 February 2014, in relation to the cancellation of the Appellant’s student visa, the Appellant gave evidence concerning the termination of her pregnancy in November 2012. The Tribunal noted that the member conducting the earlier hearing asked the Appellant directly whether family violence was a factor in her case and both the Appellant and her migration agent stated that it was not.

20    The Tribunal found, in its Statement of Reasons at [37], that had the Appellant’s former husband been violent towards her, “she would have stated this in her visa cancellation hearing on 8 February 2014 when specifically asked if family violence was an issue in her case”. The Tribunal subsequently stated, at [40], that it did not accept that the former husband was violent towards the Appellant in the past, and therefore that he would seek to harm her in the future.

21    Once viewed in the context in which the Appellant gave her evidence before the Tribunal and the manner in which the Appellant advanced her claims, no aspect of the Tribunal’s reasoning with respect to that evidence can be characterised as illogical or irrational. It was open to the Tribunal to treat the Appellant’s evidence concerning family violence in the way it did, including by drawing a line between the termination of the Appellant’s pregnancy and the conduct of her former husband following this event. It is evident from the Statement of Reasons that, in rejecting the claim that the former husband was “violent” towards the Appellant, the Tribunal was referring to physical violence, consistently with the way the Appellant put her claim before the Tribunal.

22    The Appellant’s submissions fail to identify any other error in the Primary Judgment on this issue. The primary judge did not draw an analogy to the facts of CED15. The primary judge merely cited that decision for the orthodox proposition that the fact that the Appellant was represented “has some significance to the way the Tribunal could have been expected to conduct the proceeding and the way it would have read and approached the submissions”: CED15 at [74]. Nor can it be said, as the Appellant contends, that it is immaterial whether the Appellant substantively advanced a claim that her former husband’s conduct in demanding that she terminate her pregnancy was a factor on which she relied in her case. In circumstances where the Appellant was represented, the Tribunal was entitled to assume that the claims expressly articulated by the Appellant as the basis for her feared persecution were those on which she would rely: ELA18 v Minister for Home Affairs [2019] FCA 1482 at [32] (Abraham J).

23    For the reasons given, ground 1 will be dismissed.

24    By Notice of Contention, the Minister contends that the judgment of the primary judge should be affirmed on the alternative basis that the Court ought to have decided this ground of the Appellant’s application for judicial review on the basis that the identified error was not material to the decision of the Tribunal. In circumstances where I have dismissed ground 1 of the appeal on the basis that there is no error in the Primary Judgment, it is not necessary for me to address the Notice of Contention.

ground 2

25    The Appellant relies on the principles that:

(1)    the failure by the Tribunal to consider an applicant’s claims and their component integers is jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42] (Allsop J, Spender J agreeing).

(2)    consideration of the Appellant’s claims cannot be “lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant”: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [38] (Kenny, Griffiths and Mortimer JJ).

26    The Appellant submits that the primary judge erred in failing to find that the Tribunal did not adequately consider two of the component integers arising from the Appellant’s claims, namely the risk to the Appellant on return to India as a result of her (putative) divorce and re-marriage to an Australian citizen (CS) from:

(1)    her family; and/or

(2)    society generally.

27    The Tribunal relevantly determined in its Statement of Reasons at [40]-[41]:

40.     On the evidence before it, the Tribunal does not accept that [JS] was violent towards the [Appellant] during their marriage, nor that he has sought to threaten or harm the [Appellant] and her family since their separation. The Tribunal does not accept that her former husband has threatened, attacked, orchestrated or otherwise sought to frame the [Appellant's] father in relation to the incidents in 2013, 2016 and 2017.

41.     The Tribunal has considered the [Appellant's] claim that her former husband will harm her in the future because she has remarried. The Tribunal has accepted that she married [CS] in Melbourne on 14 July 2014 and that they have since separated. As the Tribunal has not accepted that her former husband was violent towards her in the past, it does not accept that he will seek to harm her in the foreseeable future because of a relationship that has ended. The concerns the Tribunal holds about the [Appellant's] credibility cause it not to accept that her family and others in India will seek to harm her because she married an Australian citizen, noting that it is not suggested that any person has sought to harm her for this reason to date and the marriage has now ended.

28    In the Primary Judgment, the primary judge relevantly held that:

(1)    although there was difficulty “logically connecting” the absence of attempts to harm the Appellant by family located in India with what happened after the Appellant had relocated to Australia, it was open to the Tribunal to reason as it had (at [61]); and

(2)    in this case, the Appellant’s claim to persecution on the basis of her re-marriage was sparsely put and unsupported by any evidence such that it was difficult to conceive of how the Tribunal could have grappled with it beyond the way that it did: at [63].

29    The Appellant submits that the Tribunal’s purported treatment of the Appellant’s claims (at [40] and [41]), as considered in the Primary Judgment, does not demonstrate their consideration as part of the requisite “active intellectual process”: SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 at [17] (Perry J).

30    Firstly, the Appellant submits that to the extent the claims were addressed by reference to the Tribunal’s findings as to credibility (concerning the claims of violence by the Appellant’s former husband), the Tribunal failed to appreciate (and therefore to adequately consider), the nature of those claims. The Appellant submits that the claims went to future, serious harm independent of, and unrelated to, the earlier allegations concerning her former husband. Further, the claims concerning societal harm bore no connection to her former husband whatsoever.

31    Secondly, the Appellant submits that to the extent the Tribunal reasoned that no one had sought to harm the Appellant historically, this reveals a misunderstanding as well, a matter recognised by the primary judge in the Primary Judgment at [61].

32    Thirdly, the Appellant submits that to the extent the Tribunal reasoned that the Appellant’s marriage to CS had ceased, this had no logical bearing: the threats arose from the very fact of the Appellant’s divorce and re-marriage: Primary Judgment at [55].

33    The Appellant submits that the above claims or component integers thereof have been raised by the Appellant and the primary judge ought to have found that the Tribunal failed to consider them in the requisite sense and thereby fell into jurisdictional error.

Consideration

34    The sole place in which the Appellant’s claim to the risk on return to India arising from her re-marriage is set out was in the application for the visa. In answer to the question “Why do you think this will happen to you if you go back?”, the Appellant said (emphasis added): AB 115:

I will be tortured and killed. My life is at risk and if I go back then … that is why I am requesting the Department to kindly see the seriousness of my situation and please save my life. My life is in danger and I know my ex-husband will really hurt me. He has political contacts and strong links which he will use as well and he will not in trouble with the law. He is behaving very badly with me. He will do anything to make my life miserable and not liv[e]able.

Also, it is very hard as I am married to an Aussie, my husband Christian is a great man and we are living in a great married relationship. But my family and other people around will not accept this marriage due to cultural and religious differences. So I am left nowhere other than requesting the Department to request this application as I fear my life when I return back to India …

35    The claim set out above was not a substantial, clearly articulated claim to fear serious or significant harm. At its highest, the Appellant suggested that her life might be “hard” due to people not accepting her marriage to an Australian man. There was no claim to fear a relevant type of serious or significant harm as a result.

36    The Appellant never advanced this claim beyond bare assertion. The Appellant did not provide country information or any other evidence to support the claim. The primary judge was correct to find it was “sparely put”: Primary Judgment [63]. The Appellant provided affidavits from her mother and father which made no reference to them not supporting the Appellant’s marriage or that they would seek to harm her in any way. In fact, the affidavits claim to be concerned with ensuring the Appellant’s safety.

37    The primary judge was correct to find that the claim, even as “sparsely put”, was considered by the Tribunal.

38    The Tribunal’s reasons in its Statement of Reasons at [41]-[42] were sufficient to demonstrate a clear engagement with the claim that was put by the Appellant. That is particularly the case in circumstances where the High Court has recently emphasised in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ) that the “requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevant of the representations”.

39    It was open to the Tribunal in its reasons at [37] to rely upon its “grave concerns” about the Appellant’s credibility when rejecting her claim. The primary judge was correct to reject the Appellant’s submission that the Tribunal did not adequately consider two of the component integers arising from the Appellant’s claims namely, the risk on return to India from her own family and society generally, on account of her divorce and re-marriage to an Australian citizen.

40    For the reasons given, ground 2 will be dismissed.

disposition

41    I will order that the name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

42    The appeal will be dismissed. The Appellant will pay the First Respondent’s costs.

Associate:

Dated:    7 December 2023