Federal Court of Australia FDX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1232 Appeal from: FDX19 v Minister for Immigration [2020] FCCA 2629 File number: NSD 1117 of 2020 Judgment of: BROMWICH J Date of judgment: 13 October 2021 Catchwords: MIGRATION – appeal from a decision of a judge of the Federal Circuit Court of Australia to affirm a decision of the Administrative Appeals Tribunal not to grant the first, third and fourth appellants protection visas – where the four appellants are a husband and wife, and their adult son and daughter respectively – whether primary judge erred in ruling that the Tribunal's failure to consider the risk of deterioration in the tolerance of the Islamic practise to which the appellants subscribed did not give rise to any jurisdictional error – whether primary judge erred in ruling that the Tribunal's failure to consider aspects of the evidence of one of the appellants' witnesses did not give rise to any jurisdictional error – whether primary judge erred in ruling that the Tribunal's finding of no real chance that the appellant wife would be subject to sexual assault in the future if returned to Indonesia did not give rise to any jurisdictional error – held: appeal dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 25 Date of hearing: 13 August 2021 Counsel for the Appellants: The appellants appeared in person on their own behalves Counsel for the First Respondent: G Johnson Solicitor for the First Respondent: Minter Ellison Lawyers ORDERS NSD 1117 of 2020 BETWEEN: FDX19 First Appellant FER19 Second Appellant FES19 (and another named in the Schedule) Third Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: BROMWICH J DATE OF ORDER: 13 october 2021 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMWICH J: 1 The first to fourth appellants are all citizens of Indonesia and members of the same family. They are a husband (first appellant), wife (second appellant), an adult son (third appellant) and an adult daughter (fourth appellant). They first came to Australia in 2002 on tourist visas when the children were young, applied for protection visas the same year, were refused the grant of those visas in decisions that were affirmed in 2003, and left Australia when they were removed in 2006. They returned to Australia in 2007 on student visas obtained by the parents under false identities. The parents studied and worked in Australia using those false identities, travelling in and out of Australia on multiple occasions. This was only discovered in 2012 when they applied for employer nomination visas which were refused because of the provision of false information, decisions that were affirmed on merits review. 2 In November 2014 the appellants applied again for protection visas. The appellant husband and the appellant wife advanced separate claims for protection, with the adult children's applications in part depending on their father's claims, and in part making claims of their own. As a result there were separate decisions at each stage: one for the appellant husband, appellant son and appellant daughter, and one for the appellant wife. 3 The protection visa applications were refused by a delegate of the first respondent in January 2016, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The delegate's decisions were affirmed by the Administrative Appeals Tribunal (the second respondent) in December 2019. The appellants applied for judicial review of the Tribunal's decisions in the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia. Those applications were dismissed by a judge of that Court on 22 September 2020. The appellants appeal from those decisions. 4 The appellant husband claimed to fear harm if returned to Indonesia as a member of Islam Jama'ah (IJ), an unlawful organisation whose teachings are contrary to the Islamic teachings of mainstream Muslims, and a related lawful organisation, Lembaga Dakwah Islam Indonesia (LDII). The appellant husband claimed to fear being the subject of threats to give up his beliefs and practices if returned to Indonesia. He claimed to have been involved in the activities of LDII. The appellants' case and the reasons of the Tribunal sometimes consider IJ and LDII as one effective entity, and sometimes as separate entities, perhaps reflecting where they overlap and where they are distinct. 5 Following detailed consideration of the claims made, evidence given at a joint hearing conducted in July and August 2018 with the assistance of a solicitor and migration agent, supporting material furnished and country information, the Tribunal reached the following conclusions in relation the claims made by the appellant husband, son and daughter: [80] For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicants will face serious harm or significant harm for reasons related to their religious beliefs and practices in Indonesia. In reaching the conclusion that the applicants are not at risk of harm in Indonesia for reasons relating to their religion, the Tribunal has considered the independent country information as the evidence before it about the applicants' experiences in Indonesia and their immigration history. The applicants' evidence indicates that [the appellant husband] and [the appellant wife] were employed by the Department of Justice up until 2002, when they first travelled to Australia, and that, after they returned to Indonesia in 2006 they travelled to Australia on false identities and, using these identities, voluntarily travelled between Indonesia and Australia. The Tribunal considers that the fact that the applicants returned to Australia on false identities and maintained those false identities suggests that they are prepared to do and say anything to obtain a favourable immigration outcome. Furthermore, during this time all of the applicants voluntarily returned to Indonesia and the third named applicant continued to study in Indonesia while his parents and sister were residing in Australia. In the Tribunal's view, this conduct undermines the applicants' claims that they returned to Australia to avoid religious persecution in Indonesia. [81] While the Tribunal is prepared to accept that the adult applicants may have been assaulted in the 1990s and that the first and second named applicants may have experienced a degree of discrimination and hostility in Indonesia before they first sought asylum in Australia in 2002, the Tribunal considers it is significant that the first and second named applicants did not seek asylum in the United States and were able to maintain their roles at the Department of Justice up until they travelled to Australia in 2002. Significantly, the Tribunal does not accept that after the applicants returned to Indonesia in 2006 they were unable to attend their mosque of choice, participate in prayers, religious gatherings, or any other religious activities. The Tribunal finds that in the years after the applicants returned to Indonesia in 2006 none of the applicants have been harmed, abused or otherwise targeted by any persons or groups in Indonesia because of their religious beliefs and practices. The Tribunal does not accept that [the appellant husband] was assaulted because of his religious beliefs in 2006 or that he or his family members were required to move around in Indonesia to avoid religious persecution after they returned to Indonesia in 2006. While the Tribunal cannot dismiss the possibility that [the appellant son] may have been the target of a random assault in 2010, the Tribunal does not accept this assault was religiously motivated and rejects, in their entirety, claims that [the appellant son] or [the appellant daughter] have been subject to serious harm or significant harm in Indonesia for reasons relating to their faith. [82] The Tribunal finds that if the applicants return to Indonesia now or in the reasonably foreseeable future they will be able to practice their faith in LDII mosques as they have done in the past. The country information set out above indicates that the situation for IJ/LDII practitioners has improved significantly since the ban on LDII was lifted in 2008. Furthermore, for the reasons given above, the Tribunal does not accept that the treatment of IJ followers is distinct from the situation of LDII followers. No recent reports of IJ followers being targeted for harm could be located and the Tribunal is satisfied that the applicants would be able to practice their faith in an LDII mosque. The Tribunal also considers the applicants' conduct indicates that, whatever difficulties the adult applicants experienced in the 1990s, they did not experience serious harm or significant harm when they returned to Indonesia from Australia in 2006. In particular, the Tribunal does not accept that the applicants moved around to different parts of Indonesia to avoid persecution, or that the child applicants were unable to regularly attend school, or that [the appellant husband] is unable to teach or preach because of the fear of religious persecution. The Tribunal does not accept that the applicants have only been able to avoid harm in Indonesia by acting discreetly. The Tribunal considers it is possible that the applicants may encounter a degree of societal discrimination or stigma from non-followers of IJ/LDII, but the Tribunal is not satisfied that any discrimination that they will experience will amount to serious harm for the purpose of the refugee criteria or significant harm for the purpose of the complementary protection criterion. The Tribunal does not accept that there is a real chance that [the appellant husband] or his children will be persecuted if they return to Indonesia now or in the reasonably foreseeable future. The Tribunal finds that there is no real chance that the applicants will face serious harm or significant harm if they return to Indonesia now or in the reasonably foreseeable future because of their religious beliefs or practices. [The Appellant Husband] [83] The Tribunal accepts that [the appellant husband] is a follower of IJ/LDII and that, along with his family, he attends a mosque in Punchbowl. [The appellant husband]'s evidence was that he attended an LDII mosque in Indonesia. Having regard to the country information, the Tribunal finds that he will be able to attend an LDII mosque in Indonesia and practice his faith under the umbrella of LDII if he returns to Indonesia now or in the reasonably foreseeable future. The Tribunal is not satisfied that IJ followers and leaders have problems in Indonesia, whereas LDII followers and leaders do not. Having regard to the country information and what it has accepted of [the appellant husband]'s claims and circumstances, the Tribunal is not satisfied that [the appellant husband] faces a real chance of serious harm for reasons of religion if he returns to Indonesia now or in the reasonably foreseeable future. For the avoidance of doubt, the Tribunal is not making any finding that [the appellant husband] could avoid harm by acting discreetly. Rather, the Tribunal finds that if [the appellant husband] returns to Indonesia he will be free to manifest his religion in accordance with his beliefs, including by preaching or acting as a spiritual advisor if he chooses to do so, and that there is no real chance that he will face serious harm or significant harm as a consequence of doing so. [The Appellant Son] [84] The Tribunal finds that [the appellant son] is an active follower of IJ/LDII. The Tribunal does not accept that [the appellant son] was assaulted in a religiously motivated attack in 2010 or that he has otherwise experienced serious harm or significant harm in Indonesia because of his religious beliefs or practices. The Tribunal does not accept that [the appellant son] acted discreetly to conceal his religious beliefs to avoid the risk of being harmed because of his religious beliefs and activities in Indonesia. The Tribunal accepts that [the appellant son] is a valued member of the AIDA mosque in Australia and has had regard to all the evidence about his religious practice in Australia and Indonesia. The Tribunal is not satisfied that [the appellant son] has a religious profile that gives rise to a real chance that he would face serious harm or significant harm in Indonesia. The Tribunal finds that if [the appellant son] returns to Indonesia he will be free to manifest his religion in accordance with his beliefs and there is no real chance that he will face serious harm or significant harm in Indonesia as a consequence of doing so. [The Appellant Daughter] [85] The Tribunal accepts that [the appellant daughter] is a follower of IJ/LDII. [The appellant daughter] returned to Indonesia from Australia on 29 November 2011 and remained in Indonesia until 23 January 2012. The applicants submitted that the purpose of [the appellant daughter]'s trip was to visit her grandfather who was gravely ill and subsequently passed away and that when she returned to Indonesia she was never open about the fact that she is an active follower of IJ for fear of persecution, and essentially practices her religion in private. However, the Tribunal considers the fact that [the appellant daughter] voluntarily returned from Australia to Indonesia suggests that neither she nor her parents held concerns that she would be targeted for religious reasons in Indonesia. [The appellant daughter] elected not to give evidence to the Tribunal. On the evidence before it, the Tribunal is not satisfied [the appellant daughter] has been subject to serious harm or significant harm in the past because of her religious beliefs and practices in or that she was only able to avoid religious persecution in Indonesia by acting discreetly. Having regard to its findings of fact and the country information set out above, the Tribunal finds that if [the appellant daughter] returns to Indonesia she will be free to practice her faith at an LDII mosque and to manifest her religion in accordance with her beliefs and that there is no real chance that she will face serious harm or significant harm as a consequence of doing so. 6 Similar conclusions were reached in relation to the parallel claims made by the appellant wife. The appellant wife made additional claims as to being sexually assaulted in 1996, which were accepted, but concluded (footnotes omitted): [56] The Tribunal does not accept that there is a real chance that the applicant will be subject to serious harm, including in the form of sexual assault from male perpetrators, if she were to return to Indonesia now or in the reasonably foreseeable future. The Tribunal finds that if the applicant were to return to Indonesia now she would do so in the company of her husband. While the Tribunal has considered country information in the DFAT report about the situation of women and the country information about the situation of LDII/IJ followers, the Tribunal is not satisfied that there is a real chance that she would face serious harm, in the form of a further sexual assault, now or in the reasonably foreseeable future from those individuals who assaulted her in 1996. Nor, on the evidence before it, is the Tribunal satisfied that there is a real chance that she will be subjected to sexual violence by other male predators. The Tribunal considers the assertion that the applicant will subject to a further sexual assault if she returns to Indonesia to be speculative and remote. The Tribunal is not satisfied that there is a real chance (rather than one that is remoted and far-fetched) that she will face such harm. [57] In reaching this conclusion, the Tribunal has had regard to country information about the prevalence of gender based violence as well as the particular circumstances of the applicant. Over two decades have passed since the assault upon the applicant and those responsible for assaulting her in 1996 have not made any subsequent threats against her or her family. She remained living in Indonesia between 1996 and 2002 and, as the Tribunal put to the applicant she did not apply for asylum when she travelled to the United States in 2001 but voluntarily returned to Indonesia where she worked at the Department of Justice up until she first travelled to Australia in 2002. The applicant told the Tribunal she was still looking for safe places for her to do the religious service. In Australia she could do her religious service safely and she could forget all of the bad experience. If she returned she didn't know who the person who tortured her and attacked her, she wouldn't be able to retaliate and she couldn't hide. However, as noted in the delegate's decision, in December 2007 she voluntarily returned to Indonesia from Australia until January 2008 and the Tribunal considers her immigration history also tends to undermine her claims that she believes she will be at risk of being assaulted again if she returns to Indonesia now or in the reasonably foreseeable future. The Tribunal also addressed a related issue concerning what had happened to the appellant wife in the past becoming known, but it is not necessary to do more than note that this claim was addressed and not accepted, an aspect of the decision that is not now challenged. 7 In each set of reasons, the Tribunal did not accept that any different conclusion should be reached in relation to complementary protection. 8 While it is clear that the conduct of the appellants in using false identities played a part in the assessment of their credit, numerous claims as to what had happened in the past were nonetheless accepted. The Tribunal did not accept that they faced any real chance of future persecution for reasons going well beyond the use of false identities and the provision of false information. The notice of appeal 9 The notice of appeal contains the following grounds: 1. The Administrative Appeals Tribunal and the Federal Circuit Court failed to give due and proper consideration to the fact that there is a foreseeable risk of harm if the appellants were forced to return to their country of Origin. 2. The Court in SZSKC v MIBP affirmed that the 'necessary and foreseeable consequence' element pursuant to S 36(2)(aa) of the Migration Act 1958 relates to the risk of harm, rather than the actual occurrence of harm i.e. exposure to the risk (and not the risk of harm itself) as a necessary and foreseeable consequence of return. The appellant is not required to prove that he would suffer real harm before the real risk test is applied; nor is there a legislative requirement imposed on the appellant to prove that he will suffer harm. That sets the bar way higher than intended under s 36(2)(aa). The Court in MIAC v Anochie adopted a similar approach, in respect of the interpretation of the phrase 'necessary and foreseeable consequence' when considering Australia's non-refoulement obligation under the ICCPR. 3. Paragraph 40 of FCC's first decision wrongly concluded that the applicants' action of providing false information to authorities and their reliance upon false identity documents were serious effort to obtain a desired immigration outcome. Although the Court also raised the issue of credibility, the appellants say that absent this foolish action of using false identities, the Court will be able to correctly identify and acknowledge a reasonably foreseeable risk of harm if they are forced to return to Indonesia. 4. Whilst the appellants understand and acknowledge that they have made a mistake in the past for entering Australia using false identities, they nonetheless submit that they should be awarded protection on the basis of religious persecution. 5. The Court erred in failing to consider the real possibility of reduced government support for the believers of Islamic Jama'ah ('IJ') or now referred as LDII, a religious minority that has undergone serious persecution in the past. The Independent Country Report confirmed that the ban on IJ was lifted in 2008, the year where Indonesia experienced democratisation under the leadership of Yudhoyono. As Indonesia experienced democratisation in 2008, one of the fundamental items on the agenda was to demonstrate the nation's leaders' support for democracy which in turn called for the freedom to practice one's religion. However, the Country Report is unable to disclose the truth that this freedom to religion very much depends on the stance of their political leaders. On the surface, Indonesia is starting to show increased tolerance toward minority religions but the appellants remain sceptical as to how long this tolerance can go on for. 10 The appeal is therefore formally confined to the first decision made by the primary judge, concerning only the appellant husband, appellant son and appellant daughter, but in any event the conclusion reached on the grounds that are pursued apply equally to the Tribunal decision made in respect of the appellant wife. 11 The pleaded grounds can be comprehended as advancing two appeal grounds: (a) Paragraphs 1, 2 and 5, appear to address the same topic as the first ground maintained before the primary judge, numbered ground 3, concerning a future risk of reduced religious tolerance of LDII by the Indonesian government. The appellants address this issue in written submissions as appeal ground 1. (b) Paragraph 3, although it refers to the primary judge's first decision, seems to be taking issue with the Tribunal's treatment of the appellants' action in providing false information to the Minister's Department, and reliance on false identity documents. That was not an issue raised with the primary judge. The appellants address this issue in written submissions as appeal ground 2. It was also alluded to in the appellants' oral submissions in reply, made by the third appellant (the appellant son) on behalf of the other three appellants. (For completeness, paragraph 4 does not advance any ground of appeal.) 12 The appellants characterise the issues for determination, not entirely to be found in the notice of appeal but reflected in the judicial review grounds before the primary judge, as being whether his Honour erred in ruling: (a) that the Tribunal's failure to consider risk of deterioration in tolerance of LDII and IJ did not give rise to any jurisdictional error (appeal ground 1); (b) that the Tribunal's failure to consider aspects of the evidence of one of their witnesses did not give rise to any jurisdictional error (appeal ground 2); and (c) that the Tribunal's error in finding no real chance that the appellant wife will be subject to sexual assault in the future did not give rise to jurisdictional error – the appellants address this issue in written submissions as appeal ground 3. 13 It is appropriate to address what occurred before the primary judge in relation to the three identified appeal grounds, taking a generous approach to inadequacies in the form of the notice of appeal. 14 As to appeal ground 1, before the primary judge the appellants asserted that the Tribunal erred in its consideration of whether the appellants faced a real chance of harm into the reasonably foreseeable future, by failing to consider the risk of deterioration in tolerance by the Indonesian government of the LDII and IJ. The primary judge rejected this argument at [60], finding that no such claim had been made or arose from the material before the Tribunal, and was satisfied that the Tribunal had correctly applied the test in relation to the reasonably foreseeable future. 15 As to appeal ground 2, before the primary judge the appellants asserted that the Tribunal had failed to give genuine consideration to an aspect of the evidence of one of their witnesses to the effect that she had obtained a protection visa in Australia on the basis of being an IJ practitioner, and that the Tribunal needed to consider the relevance or significance of this evidence in assessing the appellants' protection claims. The primary judge found at [61] that the Tribunal (at [75]) did engage with the witnesses' evidence, and gave logical and rational reasons for giving it little weight, including lack of independence and a long-standing friendship with the appellants, preferring country information. 16 As to appeal ground 3, the primary judge found at [62] that this was no more than an attempt at impermissible merits review, but his Honour's reasons were not otherwise illuminating. Appeal ground 1 – the risk of deterioration in the tolerance towards LDII and IJ 17 The substance of the appellants' argument is that the primary judge erred in requiring any claim to be made about tolerance diminishing, and was obliged to consider whether that might occur in the application of the real chance test as described in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575: Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. 18 The appellants submit that the Tribunal and therefore the primary judge should have recognised that just as tolerance had increased after 2008, it could diminish to the level of intolerance that had existed between the 1970s and 2008, and failure to consider this amounted to jurisdictional error. However, the insurmountable impediment to this argument succeeding is that this does not do justice to the careful reasoning of the Tribunal on the topic of risk assessment and the application of the real chance test, as acknowledged by his Honour at [60]. This included references to parts of the Tribunal reasons which weighed and assessed what had happened in the past, with the Tribunal noting in particular that the appellants voluntarily returned to Indonesia between 2007 and 2012, which is inconsistent with any fear of facing serious or significant harm. The Tribunal also elsewhere addressed the situation for IJ and LDII followers in Indonesia as part of the finding that the appellants were free to practise their religion there. There is nothing to indicate any departure from the process envisaged by Guo. 19 The appellants also take issue with the role that their use of false identities played in the assessment of their credibility and therefore in the assessment of both their claims as to what had happened in the past, and their asserted fears as to what might happen in the future. They complain that the issue of the false identities and how it was used was not clearly addressed by the Tribunal. As the Minister points out, this argument misrepresents the basis for the Tribunal's decision, and the role that the false identities played in the assessment of their claims and evidence. It also fails to give credit for the care with which the Tribunal applied the issue of false identities to the overall assessment process. This was something that the Tribunal was plainly able to take into account in the way that it did. I discern no legal or factual error at all on the part of the Tribunal on this issue, let alone any error amounting to a jurisdictional error, and therefore correspondingly no error on the part of the primary judge. 20 This ground of appeal must fail. Appeal ground 2 – consideration of the appellants' witness's evidence 21 The appellants' submissions argue that the success of their witness in obtaining a protection visa in 2011, after tolerance had supposedly increased in 2008, was "significantly relevant", and that the primary judge's reasons were inadequate, amounting to no more than a restatement of the Tribunal's reasoning. While his Honour's reasons on this topic were, to say the least, succinct, they accurately conveyed a correct summary assessment of how the Tribunal had addressed this evidence. The problem for the appellants is that the Tribunal's findings, which do not reveal error, let alone jurisdictional error, assessed the evidence of their witness as being of questionable weight and contrary to objective country evidence. Once this is appreciated, the substance of this ground of appeal is nothing more than merits review. 22 This ground of appeal must also fail. Appeal ground 3 – the real chance of sexual assault of the appellant wife 23 This ground takes issue with the primary judge's sparse conclusion, without supporting reasons, that the Tribunal's reasons on this topic reflect a genuine intellectual engagement with the appellant wife's claims and the evidence including the country information. This is a reference to the Tribunal's separate reasons on the appellant wife's merits review application. However, when regard is had to the Tribunal's reasons reproduced at [6] above, and also in other parts of the Tribunal's reasons touching on this topic, that conclusion is amply justified. 24 This ground of appeal must also fail. Conclusion 25 As all of the grounds of appeal, both expressly pleaded and addressed in written submissions, have failed, the appeal must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate: Dated: 13 October 2021 SCHEDULE OF PARTIES NSD 1117 of 2020 Appellants Fourth Appellant: FET19