ACN16 v Minister for Home Affairs
[2019] FCA 399
•28 February 2019
FEDERAL COURT OF AUSTRALIA
ACN16 v Minister for Home Affairs [2019] FCA 399
Appeal from: ACN16 v Minister for Immigration & Anor [2018] FCCA 2969 File number VID 1426 of 2018 Judge: MIDDLETON J Date of judgment: 28 February 2019 Date of publication of reasons 20 March 2019 Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 Date of hearing: 28 February 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 26 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr C McDermott Solicitor for the First Respondent: Clayton Utz Solicitor for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 1426 of 2018 BETWEEN: ACN16
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MIDDLETON J
DATE OF ORDER:
28 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the costs of the First Respondent to be taxed in default of agreement.
3.The First Respondent’s name be changed to “Minister for Home Affairs”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MIDDLETON J:
INTRODUCTION
On 28 February 2019, the Court ordered that:
(1)The appeal be dismissed.
(2)The Appellant pay the costs of the First Respondent to be taxed in default of agreement.
(3)The First Respondent’s name be changed to “Minister for Home Affairs”.
These are the reasons for the making of the orders.
By Notice of Appeal dated 8 November 2018, the Appellant seeks to appeal from the whole of the judgment of the Federal Circuit Court (the ‘FCC’) delivered on 24 October 2018 in which the FCC dismissed the Appellant’s application for judicial review of a decision of the Second Respondent (the ‘Tribunal’) which had affirmed a decision of a delegate of the First Respondent (the ‘Minister’) not to grant the Appellant a Protection Visa.
FACTUAL OVERVIEW
On 17 February 2014, the Appellant applied for the Protection Visa. In short, the Appellant, who is a citizen on India, sought the Protection Visa on the ground that she fears harm from her ex-husband and his family who live in India. The Appellant had an arranged marriage to her now ex-husband in April 2009 but his visa applications which would allow him to join her in Australia were refused. This was said to have brought shame and loss-of-face to her ex-husband and his family who have blamed the Appellant. The couple divorced in September 2012, which was again said to bring shame and dishonour to the ex-husband and his family. The Appellant had claimed that Indian tradition and culture gives husbands and in-laws the right to kill women in their family for bringing shame and dishonour to the family. She had claimed that the Indian government could not protect her in such circumstances as there is a gender bias in the police force.
On 10 October 2014, the Minister’s delegate refused to grant the Appellant a Protection Visa.
On 22 October 2014, the Appellant applied to the Tribunal for review of the Minister’s delegate’s decision. On 17 November 2015, the Appellant appeared at a hearing before the Tribunal to give evidence and present arguments on the issues on the review.
On 15 December 2015, the Tribunal affirmed the Minister’s delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal found various aspects of the Appellant’s evidence regarding threats and behaviours of her ex-husband and former in-laws to be vague and inconsistent. The Tribunal considered the Appellant had exaggerated the harm she feared and therefore found some aspects of her claims lacked credibility.
The Tribunal broadly accepted that there had been unsuccessful attempts between 2010 and 2011 in obtaining a visa for the Appellant’s ex-husband while she had been in Australia, that the ex-husband and his family may have been upset by the unsuccessful attempts and may have accused the Appellant of not trying hard enough to bring the ex-husband to Australia, and that his family had visited her family in India to discuss this on more than one occasion (including with a ‘middle-man’ who had assisted in arranging the marriage).
The Tribunal accepted that the Appellant and her ex-husband divorced on 3 September 2012, and that it was plausible that her in-laws demanded repayment of funds provided to her at the time of her marriage in 2009. However, the Tribunal found that the Appellant’s claim that approximately 50 to 60 people came to her parents’ house demanding money to be ‘greatly exaggerated’. Given the vague nature of her evidence, the Tribunal did not accept that during a visit between the Appellant’s family and the ex-husband's family that there was any aggressive behaviour towards her family.
The Tribunal accepted the Appellant’s evidence that the funds paid by her ex-husband’s family had been repaid in early 2014, and noted that the Appellant had not made any claims of her family having been physically harmed at the time they demanded their money back or thereafter. The Tribunal also rejected the Appellant’s claim that her grandmother had died of stress relating to the events surrounding her divorce. The Tribunal reiterated that it had not accepted the Appellant’s claims that anyone in her family face harm from the ex-husband’s family, and that the money gifted had been repaid.
The Tribunal rejected the Appellant’s evidence of alleged threats made by her ex-husband and family towards her own family as ‘vague, confused, inconsistent and exaggerated’. In this regard, the Tribunal identified the following specific matters:
(1)There was an apparent inconsistency between the Appellant’s earlier made claim to have received ‘blank calls’ from the ex-husband's family at the time of her divorce in 2012 with the evidence given by her before the Tribunal that her ex-husband had called her on two or three occasions at the time of their divorce, but she did not otherwise mention any contact with his family.
(2)The Tribunal rejected the Appellant’s potential explanation for this inconsistency based on the Appellant’s asserted insufficient grasp of English.
(3)The Tribunal also found that the Appellant was meaningfully able to participate in the hearing on 17 November 2015 (in the context of her having recently given birth in August 2015) and, as such, it reasonably expected the Appellant to be able to accurately recall harassment she claimed to have received from the ex-husband’s family.
(4)The Tribunal found the Appellant’s behaviour in trying to effect a reconciliation with the ex-husband not consistent with her fear of him and his family, and it gave ‘little weight’ to the Appellant's explanation that she sought to ‘patch things up’ in order to ease the tension on her parents.
(5)The Appellant’s evidence about the specific threats she received were vague and lacking in detail.
The Tribunal also found it difficult to accept the Appellant’s claim that the ex-husband and his family had felt dishonoured by the Appellant in circumstances where he had divorced her (rather than her divorcing him). The Tribunal also found it difficult to understand why the ex-husband and his family would continue to make such threats against the Appellant having regard to the facts it found. The Tribunal relevantly stated (at [92] of its statement of decision and reasons):
[The ex-husband] has taken action to cut ties with the [Appellant] and her family by successfully applying for a divorce. His family has asked for and received compensation for money given to the [Appellant]. The [Appellant] claimed at one stage at the hearing that his family wanted an answer (as to why she was not bringing [the ex-husband] to Australia) or their money returned. It appears that their money has indeed been returned. The [delegate’s decision] refers to comments made by the [Appellant] to ministerial intervention officers that she had heard [the ex-husband] had met someone else. Given the [Tribunal’s] concerns about the [Appellant’s] credibility, it gives little weight to her evidence that this is not true and the result of a misunderstanding. It [is] unclear from her evidence how the alleged loss of face, shame or dishonour to [the ex-husband] and his family has actually affected them. The [Appellant] has not provided any clear or credible evidence as to why [the ex-husband] or his family would continue to make threats directed at her or her family or would take steps to harm her upon her return to India.
The Tribunal also found that there was nothing to suggest that the ex-husband or his family would resort to violence, given that the Appellant’s family had not been harmed, and the Appellant’s evidence in this regard was vague. The Tribunal also gave greater weight to evidence contained in the delegate’s decision which suggested that, when interviewed in June 2013, she informed officers of the Minister’s department that she did not have fears of returning to India (rejecting the Appellant's explanations as to why this evidence was erroneous).
The Tribunal also found the delay of 18 months between the Appellant’s divorce in September 2012 and when she applied for the Protection Visa in February 2014 added to the Tribunal’s concerns about the Appellant’s credibility overall. In this regard, the Tribunal found the Appellant’s reasons for the delay lacked credibility and clarity.
The Tribunal then concluded (at [96]-[97] of its statement of decision and reasons):
[96]Having regard to the concerns set out above, while the [Tribunal] accepts that there was tension between the two families in the past due to [the ex-husband’s] inability to obtain visas to Australia and the [Appellant’s] perceived unwillingness to make this happen, the [Tribunal] finds that this dispute has now been resolved following the couple’s divorce and repayment of monies to [the ex-husband’s] family. Given its concerns, the [Tribunal] does not accept that [the ex-husband] or his family members have made threats to the [Appellant], her brother or other family members either in person or via phone calls. Specifically, the [Tribunal] does not accept that her in laws have blamed the [Appellant] for losing their place in society or [accused] her of having left [the ex-husband] and that they will not allow her to marry, will not spare her, will kill or ‘fix’ her or that since the end of the dispute they have accused the [Appellant] of spoiling [the ex-husband’s] lie. For the reasons set out above in relation to concerns about the [Appellant’s] evidence about threats, the [Tribunal] does not accept that [the ex-husband] told her he would kill her, that he or his family can do ‘anything’ to her or that he called her a bitch during their last phone conversation. Given concerns about the credibility of the [Appellant’s] claims on this matter, the [Tribunal] does not accept that [the ex-husband] called the [Appellant’s] brother while he was drunk and accused the [Appellant] of spoiling his life or that her brother continues to get phone calls. Given its concerns regarding the [Appellant’s] evidence on this matter, the [Tribunal] does not accept that her parents have continued to be harassed after the divorce and repayment of money. Due to its assessment of the [Appellant’s] credibility, the [Tribunal] further does not accept that threats and harassment from [the ex-husband] and her in laws prevented the [Appellant] from visiting her family in India.
[97]Given the concerns set out above, the [Tribunal] does not accept that people known to both families accuse the [Appellant] of dishonouring or shaming [the ex-husband] and his family or of losing the family’s place in society.
Having regard to country information it cited, the Tribunal did not accept that Indian tradition and culture condones honour killings against women. It also did not accept that the Appellant would face harm as a member of one of many social groups posited by the Appellant, described by the Tribunal as ‘divorced women perceived to have compromised family honour’, (2) ‘divorced women’, or (3) persons who have had ‘a child out of wedlock’. Having regard to its earlier findings, the Tribunal did not accept that the Appellant would face harm on the basis of any of her posited social groups, or that her daughter would face harm at the hands of her ex-husband or his family.
The Tribunal concluded that the Appellant did not meet the criteria in the Migration Act 1958 (Cth) for the grant of the Protection Visa, and therefore affirmed the Minister’s delegate’s decision.
THE FCC PROCEEDINGS
On 13 January 2016, the Appellant applied to the FCC for judicial review of the Tribunal’s decision. As summarised by the primary judge, the Appellant asserted that the Tribunal had:
(1)failed to give her procedural fairness, particularly in respect off unspecified ‘information held by the Tribunal that was adverse’ to the Appellant;
(2)failed to give her an opportunity to comment on relevant matters;
(3)failed to consider all the evidence;
(4)failed to give her proper reasons; and
(5)not conducted a merits review in the manner required by law.
On 24 October 2018, the FCC dismissed the Appellant’s application for judicial review.
After first observing (at [12]-[14]) that none of the grounds put forward by the Appellant contained proper particulars such that they could be dismissed on that basis, the primary judge then dealt (at [17]-[36]) with each ground in turn, finding:
(1)the Tribunal had afforded the Appellant procedural fairness and that, in circumstances where the Appellant bears the onus of establishing jurisdictional error (citing Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594), the Appellant had not identified the alleged adverse information which, on her submissions, the Tribunal had not allowed her to address;
(2)in the absence of any particulars regarding precisely how the Tribunal did not give the Appellant an opportunity to comment on relevant matters, that the Tribunal had acted reasonably;
(3)that, contrary to the Appellant’s contentions, the Tribunal did give active intellectual consideration to the claims advanced by the Appellant;
(4)in the circumstances of the Tribunal’s statement of decision and reasons running to 112 paragraphs which ‘expose[d] its pathway of logic at which it arrived at its conclusion to affirm the delegate’s decision’, the reasons given were ‘perfectly satisfactory’; and
(5)the Tribunal had conducted the merits review according to law insofar as the Tribunal correctly identified each claim, properly considered each claim, and then either rejected or accepted (in whole or in part) each of the Appellant’s claims.
The FCC ultimately dismissed the application for judicial review, with costs.
APPEAL TO THIS COURT
The four grounds of appeal to this Court may be conveniently summarised as follows:
(1)the FCC did not dismiss the Appellant’s application for judicial review according to law;
(2)the FCC failed to consider all the evidence;
(3)the FCC failed to provide proper reasons for judgment; and
(4)the FCC did not conduct the case in the manner required by law.
Taking each of these grounds in turn, I find that:
(1)The FCC understood that its task was to ascertain if the Tribunal’s decision was affected by jurisdictional error (see [15]).
(2)The FCC clearly understood the basis for the Tribunal’s decision given its careful summary of its dispositive findings (see [10]). It cannot be said that the Tribunal has failed to engage with the material the Appellant put before it.
(3)The FCC provided proper (and detailed) reasons for judgment by identifying the grounds of application (see [11]) and giving cogent reasons dismissing each ground (see [17]-[36]). The FCC independently assessed whether the grounds agitated could give rise to a conclusion of jurisdictional error and, for the cogent reasons given under each heading, explained why the grounds could not be relevantly made out.
(4)Finally, the FCC was alive to the potential difficulties facing the Appellant as a self-represented litigant, and the approach adopted by the primary judge suggests procedural fairness was fully afforded to the Appellant in the circumstances (see [15]-[16]).
In my view, the grounds of appeal are without merit.
CONCLUSION
The appeal to this Court should be dismissed, with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate:
Dated: 20 March 2019
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