Reference no: EM132266276 , Length: word count:3000

Assignment - Admin Law Project

Facts Scenario -

1. Baraka Lim is the daughter of Nancy and the Reverend Marshall Lim. They are a middle class family living in rural Malaysia and are Malaysian citizens (and 'non-citizens' of Australia for the purposes of the Migration Act 1958 (Cth) ('the Act')). Baraka was born on 1 May 2002.

2. When Baraka was 16 years old the Reverend and Mrs Lim discovered that she was in an intimate sexual relationship with another female class-mate. Under questioning, Baraka told them that for the last two years she has been aware of her sexual attraction to other girls, and that she does not find boys similarly attractive. She also said that she is in love with her girlfriend.

3. The Reverend and Mrs Lim are committed members of a charismatic Pentecostal Church. They are convinced that Satan is attempting to estrange Baraka from God and make her into a lesbian. Consequently, they withdraw Baraka from her school, forbid her from contacting her girlfriend and send her to Exodus, a residential 'gay conversion therapy clinic' for children and young adults in Malaysia run by a network of interdenominational Christian churches including their Pentecostal church.

4. Baraka stays at Exodus initially for three months. While there she is provided with adequate food, shelter, supervision and schooling. However, in intense individual and group therapy sessions, which are run several times each week, she is repeatedly told that homosexuality is a sinful choice and a symptom of her 'broken' relationship with God. On three occasions a teacher threatens her that she will go to hell if she continues to act on her homosexual feelings. Towards the end of her three month initial stay at Exodus, Baraka attempts to take her own life.

5. Exodus does not tell Baraka's parents about her suicide attempt and she does not tell them either.

6. The Reverend and Mrs Lim organise a family holiday in Australia for two weeks. After the holiday, they intend to send Baraka back to Exodus to continue her 'treatment'. While in Melbourne, Baraka runs away from her parents and contacts Switchboard, a LGBTI counselling service. Through Switchboard she is provided with crisis youth accommodation in Melbourne and gains access to Youthlaw, a free legal service for young people.

7. With the assistance of Youthlaw, Baraka makes an application for a protection visa under the Act. Her application contains a statement from Professor David Cruz, a US law professor who is an internationally renowned expert on legal aspects of gay conversion therapy, and a report from Ms Muldoon, a child counsellor with a Diploma in Clinical Psychology, who is seeing Baraka twice per week.

8. In her report Ms Muldoon states: I have been seeing Baraka for twice weekly 50 minute counselling sessions for the last 10 weeks. Baraka currently suffers intense feelings of anxiety and guilt about her same-sex attraction. This is caused in large part by her religious upbringing where she has been taught by her parents and Church that homosexuality is evil and sinful and deserving of punishment. She has obsessive suicidal ideations and thoughts about harming herself, which led to her attempt on her own life recently while resident at 'Exodus', a so-called gay conversion therapy clinic. Her immersion in the intense anti-LGBTI environment of Exodus is extremely harmful to her and if she returns there, there is a real risk that she will attempt to commit suicide again. If she is denied a protection visa, she will have no legal or practical option but to return to Malaysia to live with her parents in an extremely homophobic environment; moreover it appears that she will be sent back to Exodus which exacerbates the risk of significant harm.

9. Professor Cruz states: I have not meet or spoken to Baraka but I have read the report of her counsellor, Ms Muldoon. I have engaged in extensive studies of so-called gay conversion therapies and I am very familiar with the work of Exodus. In my opinion, gay conversion therapy, as practised by Exodus, is bigoted quackery which amounts to torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment, as those terms are understood in both international and domestic law, when inflicted on same sex attracted minors such a Baraka, with or without their consent. It therefore is entirely predictable that Baraka would suffer an intense aggravation of her symptoms while residing at Exodus, and I fully support the conclusion of Ms Muldoon as to the danger of significant harm if Baraka returns to Malaysia.

10. A child psychiatrist appointed by the Department, Dr Victor Sykes, interviews Baraka once for 40 minutes after reading the report of Ms Muldoon and the statement of Professor Cruz. He also interviews separately the Reverend and Mrs Lim, who remain ignorant of Baraka's suicide attempt while at Exodus.

11. Dr Sykes prepares a report for the Department. It states: Baraka's mother and father appear to love their daughter dearly and act out of genuine concern for her welfare. However, they unfortunately have a fixed and apparently intransigent view, based on their religious convictions, that homosexual attraction is sinful and that their daughter will go to hell if she continues to act on her sexual feelings for other persons of the same sex.

However, I do not believe that Baraka suffers from any form of chronic anxiety or depression about her sexual feelings. She comes across as a mature and intelligent young woman who is able to differentiate her own values from that of her parents. She understandably finds her current relationship with her parents very difficult, but she is prepared to forgo any further sexual experiences with other girls or woman, or any further public expression of her sexuality, until she reaches adulthood at 18 years of age, when she will be free to live as she chooses.

Accordingly, I do not believe that there is a real risk that Baraka will suffer significant harm if she returns to Malaysia at this stage in her life provided that she is not returned to the residential programme at Exodus.

12. Dr Sykes report is not provided to Baraka or her lawyers.

13. The Minister, Sarah Conley, is a well-known member of a Pentecostal church (although not one which is directly affiliated with the charismatic Pentecostal Church of the Reverend and Mrs Lim). She has previously stated on record that she is a 'champion of religious freedom, including the right of parents to raise their children in accordance with their faith', 'gay conversion therapy is not an issue for her', 'people of the same sex should not be allowed to marry each other under Australian law', and 'Let kids be kids. We do not need "gender whisperers" [referring to the training of teachers to identify transgender children] in our schools'.

14. On 30 January 2019 the Minister considers Baraka's application for a protection visa. She decides not to grant it.

15. Youthlaw requests a statement of reasons from the Minister under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). The Minister complies with the request and provides a statement, the relevant parts of which for the purposes of this assignment are extract below (you are to assume that the Minister's statement of reasons complies with s 13 of the ADJR Act):

I have read and considered the report of Ms Muldoon, the statement of Professor Cruz and the report of Dr Sykes, as well as the material contained in Baraka's written application.

I have also read and considered the current Independent Country Information about Malaysia, the receiving country, provided to me by my Department. This Information relevantly states that:

a) There is a widespread belief in Malaysia that homosexuality is wrong, immoral, unnatural and social unacceptable. This is reflected in Government statements and in the continued criminalisation of some forms of male homosexual activity. However, the Government does not pursue an active policy of persecution of LGBTI persons, and indeed it has not prevented the setting up of support and community groups for LGBTI persons, including LGBTI youth, in civil society.

b) Negative attitudes to homosexuality are greater in rural parts of Malaysia than in the more urbanised areas, such as Kuala Lumpur, where there is a sizeable and active LGBTI community, or regions where there is a significant influx of Western tourists such as Penang. LGBTI persons in urbanised areas and areas where there are many Western tourists experience little harassment provided they are discrete about their sexuality. However, any public displays of sexualised affection between persons of the same sex are likely to be frown upon, subject to public comment or even stopped by the police throughout nearly all of Malaysia.

Based on the above information I am not satisfied that there is a real risk that Baraka will suffer significant harm, in terms of the criterion in the Act, s 36(2)(aa), if she is removed from Australia and returned to Malaysia. Specifically:

a. I accept the opinion of Dr Sykes that Baraka's parents are genuinely concerned about her welfare and I am satisfied that they will not return Baraka to Exodus in the light of her alleged attempt to commit suicide there.

b. I accept the opinion of Dr Sykes that Baraka is a generally well-adjusted child and that she will be able to conduct herself in her relations with her parents until she turns 18 in approximately 12 months' time in a manner which minimises any friction between them over her choice of sexual orientation.

c. Once Baraka reaches 18 years of age, she will be able to relocate to other parts of Malaysia, such as Kuala Lumpur, where there is a large and thriving LGBTI community and where homosexuality and homosexual behaviour is generally tolerated.

d. Even if, in the extremely unlikely event Baraka is returned to Exodus, I do not accept that under Australian law that she would be subjected to cruel or inhuman treatment or punishment there, or any form of torture. Any pain or suffering that might be inflicted on her by others would not be intentionally inflicted, and would be mental, rather than physical, in nature. To the extent that she might suffer physical harm it would be self-harm. Her application could therefore not meet any of the definitions of significant harm in s 36(2A) of the Act.

e. The risk of serious harm to Baraka is also mitigated by the fact that she could obtain protection from an authority in Malaysia. The Government of Malaysia is prepared to offer protection to LGBTI youth, by allowing civil society support and community groups for LGBTI persons, including LGBTI youth, to operate in the country.

16. An officer from the Department had assured Youthlaw verbally that the current Independent Country Information in relation to Malaysia would be provided to it for comment prior to the Minister making her decision, and that any comments Youthlaw might make would be placed before the Minister as part of the decision-making process. However, contrary to that assurance, the Independent Country Information was not provided prior to the Minister making her decision and Youthlaw was not able to comment on it.

17. The Reverend and Mrs Lim remain ignorant of Baraka's suicide attempt at Exodus.

I. Based on the Facts Scenario and your further research into relevant legislation and cases, you are partially to prepare an Application for Judicial Review in the Federal Court of Australia under the ADJR Act (that is, you are to assume that decisions made under the Act generally fall within the purview of the ADJR Act) comprising a completed Application for Judicial Review Form in accordance with these instructions.

II. Although you are to assume that decisions made under this Act generally fall with the purview of the ADJR Act (for example, you do not need to concern yourself with the notorious privative clause in s 476 of the Act, you will still need to plead that the Minister's specific decision in this instance is a 'decision of an administrative character made under an enactment' in terms of the ADJR Act and hence reviewable under that Act.

III. Your Application must be supported by written submissions for the Applicant. The written submissions should set out the legal arguments that you wish to make in support of your Application for review. The submissions should be sufficiently detailed so that a judge reading them can understand the legal basis upon which you seek to challenge the conduct or decision. They must also be succinct.

IV. Your partial application is to address only the Minister's decision to refuse a protection visa under the Act, s 65(1) in so far as that decision relates to the criterion prescribed in the Act, 36(2)(aa), not the criterion under s 36(2)(a) (which relates to a non-citizen's status as a refugee), nor the criteria under s 36(2)(b) and (c) (which are irrelevant in any event), nor any of the other requirements covered by s 65(1) (Of course, all the other provisions in the Act which regulate decisions made under s 36(2)(aa), such as, for example, s 36(2A), will still be relevant to the drafting of your pleadings).

V. You are to allege a total of five (5) grounds of review. If you allege more than, or fewer than five grounds of review you have not complied with these instructions. You are not to allege the ADJR Act ss 5(1)(c), 6(1)(c) grounds of review, which relates to jurisdictional error.

VI. You are also not to seek a remedy (under ADJR Act s 16), Consequently, you do not need to populate that part of the form which relates to remedies.

VII. You should assume that Malaysia is the 'receiving country' as defined in s 5(1) of the Act.

VIII. There are many issues of law relevant to the satisfactory completion of this assignment which you must research.

IX. To assist you to identify the relevant legal issues, you are provided with the current Chapter 10 of the Australian Administrative Appeals Tribunal Guide to Refugee Law (entitled 'Complementary Protection').

X. The word limit is 3000 words. The word count excludes footnotes and the existing details on the application form, but footnotes must only include the citation of appropriate references, not substantial text or analysis.

Attachment:- Assignment Files.rar