ACN16 v Minister for Home Affairs

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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

  1. 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”.

  2. These are the reasons for the making of the orders.

  3. 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

  4. 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…

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Details
Case
[2019] FCA 399
Decision Date

CaseChat Overview and Summary

In the matter of ACN16 v Minister for Home Affairs, the Federal Court was tasked with reviewing a decision made by the Tribunal regarding the Appellant's application for a visa. The Appellant had sought a visa on the basis of family relationships and alleged threats from her ex-husband and former in-laws. The Tribunal had previously dismissed the Appellant's claims, finding her evidence to be vague, inconsistent, and exaggerated. The Appellant sought to appeal this decision on the grounds that the Tribunal had erred in its assessment of her evidence and in its conclusions regarding the credibility of her claims.

The central legal issues before the court were whether the Tribunal had correctly applied the relevant legal standards in assessing the Appellant's credibility and whether it had erred in finding that her claims were exaggerated or lacked credibility. Specifically, the court had to consider whether the Tribunal's findings were reasonable and supported by the evidence presented. The Appellant argued that the Tribunal had failed to adequately consider certain aspects of her evidence and had made errors in its assessment of her credibility.

The court examined the Tribunal's reasoning and found that it had appropriately considered the Appellant's evidence and had provided clear reasons for its conclusions. The court noted that the Tribunal had identified specific inconsistencies and vagueness in the Appellant's testimony, which undermined her claims. The court also found that the Tribunal's assessment of the Appellant's credibility was reasonable, given the nature of her evidence. As such, the court upheld the Tribunal's decision, dismissing the appeal.

In light of the dismissal of the appeal, the court ordered that the Appellant pay the costs of the Minister for Home Affairs, to be taxed in the absence of an agreement. The court also amended the name of the First Respondent to reflect the current title of the Minister. These orders were made in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.