ACN16 v Minister for Immigration
[2018] FCCA 2969
•24 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACN16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2969 |
| Catchwords: MIGRATION – Protection visa – applicant arrived in Australia on a student visa – 18 month delay in making a protection claim – unparticularised grounds of review – no propositions of fact or law set out grounding the protection claim – no indication of existence of jurisdictional error – some claims exaggerated – inconsistent and vague evidence – sufficiency of tribunal’s reasons – tribunal gave active, intellectual consideration to all of applicant’s claims – country information considered – credibility concerns – application dismissed. |
| Legislation: Migration Act 1958, s 424AA |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 BCF15 v Minister for Immigration and Border Protection (2016) 314 FLR 291 BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 BKL26 v Minister for Immigration and Border Protection [2016] FCA 802 BYM16 v Minister for Immigration and Border Protection [2017] FCA 326 CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 Craig v State of South Australia (1995) 184 CLR 163 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Misfud v Campbell [1991] 21 NSWLR 725 Mukto v Minister for Immigration and Multicultural Affairs [1999] FCA 1801 MZARG v Minister for Immigration and Border Protection [2018] FCA 624 NAKX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 79 Pettitt v Dunkley [1971] 1 NSWLR 376 Public Service Board (NSW) v Osmond (1986) 159 CLR 656 Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 SZSQL v Minister for Immigration and Border Protection [2015] FCA 294 Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Wainohu v New South Wales (2011) 243 CLR 181 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Other materials: The Honourable Justice Mark Weinberg, “Adequate Sufficient and Extensive Reasons” (paper, Judicial College of Victoria, 4 March 2014) |
| Applicant: | ACN16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 62 of 2016 |
| Judgment of: | His Honour Judge J D Wilson QC |
| Hearing date: | 7 August 2018 |
| Date of Last Submission: | 7 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 24 October 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: | Mr B Petrie |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed on 13 January 2016 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7 467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 62 of 2016
| ACN16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 15 December 2015 the Administrative Appeals Tribunal decided to affirm the minister’s delegate’s decision made on 10 October 2014 pursuant to which the protection visa sought by the applicant was refused, from which decision the applicant sought judicial review by application to this court filed 13 January 2016.
In her application to this court the applicant asserted that the tribunal had –
a)failed to give her procedural fairness;
b)failed to give her an opportunity to comment on relevant matters;
c)failed to consider all the evidence;
d)failed to give her proper reasons; and
e)not conducted a merits review in the manner required by law.
Synopsis
For the reasons that follow, in my judgment none of the grounds of review had merit. I was not persuaded that the tribunal fell into jurisdictional error on any of the grounds alleged. In consequence, I dismiss this proceeding and order the applicant to pay the minister’s costs.
Relevant factual setting
The applicant is a citizen of India who arrived in Australia on 4 June 2009 as the holder of a student visa. She successfully applied for a further student visa that was valid until 20 August 2011. It expired. The applicant applied on 18 October 2011 for a further student visa. As that application was made more than 28 days after the expiration of the previous visa, the applicant’s 18 October 2011 visa application was refused. The applicant sought merits review of that refusal. On 10 April 2013 the Migration Review Tribunal affirmed the decision not to grant the applicant the student visa she sought.[1] On 20 May 2013 the applicant sought ministerial intervention. On 28 January 2014 the minister refused to consider her request.
[1] [2013] MRTA 921
The applicant then applied for the protection visa in issue in this case. She obtained assistance with her visa application from Penkhull Grove Consulting Group. Her protection visa application was made on 17 February 2014. In her application she advanced the following claims –
a)between 19 April 2009 and 3 September 2012 she was married under an arranged marriage;
b)if she returned to India she would be killed by her in-laws or by her ex-husband;
c)under Indian culture, her ex-husband and his family is entitled to kill her as a result of shame and loss she brought to her ex-husband’s family; and
d)the Indian government would not protect her if she were to return to India.
Details of her claims were given by letter dated 31 July 2014 from her consultant. The applicant’s father provided a statement that was translated to support the applicant’s claims.
As mentioned earlier, the delegate refused the applicant’s protection visa on 10 October 2014.
On 22 October 2014 the applicant applied to the Refugee Review Tribunal, now the Administrative Appeals Tribunal, for a merits review of the delegate’s decision. Following a series of postponed hearings due to complications associated with the applicant’s pregnancy, she appeared before the tribunal on 17 November 2015.
The tribunal gave its decision on 15 December 2015. Set out below is a distillation of the more relevant matters that emerged from the tribunal’s decision.
In paragraphs 79, 92 and 95 of its decision the tribunal expressed its genuine concerns about the credibility of the applicant. The tribunal made the following key observations and findings –
a)in paragraph 80 of its reasons the tribunal accepted that the applicant had entered into an arranged marriage with her now ex-husband and that there were two failed visa attempts for him to join her in Australia prior to their divorce;
b)in paragraph 82 of its reasons the tribunal accepted that the applicant divorced her ex-husband on 3 September 2012;
c)in paragraph 83 of its reasons the tribunal accepted that the applicant's in-laws had demanded repayment from her family of funds they had paid for the arranged marriage but did not accept that “50-60 people” attended her family home in India for this purpose as this claim was greatly exaggerated;
d)in paragraph 84 of its reasons, given the vague nature of the applicant’s evidence given at hearing, the tribunal did not accept the applicant's claims that her ex-husband’s brother pushed and shoved people in her family;
e)in paragraph 85 of its reasons the tribunal accepted that the funds paid for the applicant’s arranged marriage were repaid in early 2014;
f)in paragraph 85 of its reasons the tribunal was not satisfied that the applicant’s grandmother died of stress related to the events surrounding her divorce from her ex-husband, the tribunal noted in this regard that it had not accepted the applicant’s claims that anyone in her family faced harm from her ex-husband’s family and that the money had in any event been repaid;
g)the tribunal stated that the applicant provided inconsistent and vague evidence regarding the threats and harassment to her from her ex-husband and his family, saying those inconsistencies included the following –
i)in paragraph 87 of its reasons the tribunal said that, in her evidence to the delegate, the applicant claimed to have received many “blank calls” whereas in her application for ministerial intervention the applicant stated that these calls likely came from her in-laws, and further the applicant also informed the delegate that these calls were received at about the time of her divorce in 2012, but in her evidence to the tribunal the applicant claimed that her ex-husband called her on two or three occasions at the time of their divorce and otherwise did not mention any contact with his family;
ii)in paragraph 87 of its reasons the tribunal said that, when confronted with the inconsistency mentioned in paragraph 86, the applicant said her English was not very good despite the fact the applicant had been in Australia studying English since 2009 and despite the fact the applicant often gave evidence to the tribunal in English at her own election (although there was a Punjabi interpreter in attendance to assist the applicant); and
iii)in paragraph 87 of its reasons the tribunal said that, although the applicant claimed to fear her ex-husband and his family, she gave evidence that she had tried to reconcile with him and avoid a divorce, which the tribunal found to be inconsistent with any suggestion the applicant was in fear of her ex-husband and his family;
h)in paragraph 88 of its reasons the tribunal addressed how the applicant had provided the tribunal with medical evidence regarding her pre-natal depression and psychological stress related to her pregnancy. The tribunal said that there was nothing to suggest the applicant was suffering from any mental health issues at the time of the hearing. Further, the tribunal stated that the applicant appeared to understand the tribunal’s questions and responded accordingly. The tribunal was therefore satisfied that the applicant was able to meaningfully participate in the tribunal hearing;
i)at paragraph 93 of its reasons the tribunal noted its credibility concerns and inconsistencies in the applicant's evidence, the tribunal stated it was not satisfied that the applicant faced harm from her ex-husband or his family;
j)At paragraph 95 of its reasons the tribunal addressed the applicant’s delay in seeking the visa, being approximately 18 months after her divorce, and that such delay enhanced its credibility concerns;
k)At paragraph 96 of its reasons the tribunal found the dispute between the applicant’s family and her ex-husband’s family had been resolved and therefore rejected the applicant’s claims that her family had continued to be harassed and threatened by her ex-husband’s family;
l)at paragraph 99 of its reasons the tribunal reasoned that, having regard to country information, the tribunal did not accept that the Indian state condoned honour killings;
m)between paragraphs 101 and 108 of its reasons the tribunal stated that, having regard to country information, the tribunal did not accept that the applicant faced harm as a member of the particular social groups, “divorced women perceived to have compromised family honour”, “divorced women”, “single mothers”, or persons who have “had a child out of wedlock”; and
n)at paragraph 110 of its reasons the tribunal said that, for the same reasons, the tribunal found that the applicant did not satisfy the complementary protection criterion.
In this court
The applicant’s grounds of review did not contain particulars. She relied on five grounds. Set out verbatim, they were as follows –
1. The Tribunal’s decision of 10 October 2015 was affected by jurisdictional error in that the Applicant was not afforded procedural fairness in the making of the decision by reason of the Tribunal’s failure to allow the Applicant a fair, meaningful or reasonable opportunity to respond to information held by the Tribunal that was adverse to the applicant that was considered by the Tribunal to be credible, relevant and significant to the Applicant’s application for review and would (and did) form the reason, or part of the reason, for affirming the decision under review.
2. The Tribunal’s decision of 10 October 2015 was affected by jurisdictional error in that the Tribunal acted unreasonable in the exercise of its statutory powers by failing to provide a fair, meaningful opportunity for the Applicant to comment or respond to the relevant matters raised.
3. The Tribunal’s decision of 10 October 2015 was affected by jurisdictional error in that the Tribunal failed to consider all of the evidence in the case.
4. The Tribunal’s decision of 10 October 2015 was affected by jurisdictional error in that Tribunal failed to provide proper reasons for its decision and the findings of any material questions of fact on which the decision was based.
5. The Tribunal’s decision of 10 October 2015 was affected by jurisdictional error in that the Tribunal did not conduct the merits review in the manner required by law.
In respect of all five grounds of review the minister contended that the unpaticularised grounds of review rendered the grounds amenable to dismissal on that basis alone.
I agree.
The list of authorities that make good that proposition is extensive. It includes SZNXA v Minister for Immigration and Citizenship,[2] WZATH v Minister for Immigration and Border Protection,[3] BHK15 v Minister for Immigration and Border Protection,[4] AQN15 v Minister for Immigration and Border Protection,[5] WZAVW v Minister for Immigration and Border Protection,[6] CNN15 v Minister for Immigration and Border Protection,[7] BYM16 v Minister for Immigration and Border Protection,[8] MZARG v Minister for Immigration and Border Protection[9] and DQQ17 v Minister for Immigration and Border Protection.[10] However, I do not rely on the absence of particulars to base my decision to dismiss this proceeding.
[2] [2010] FCA 775
[3] [2014] FCA 969
[4] [2016] FCA 569
[5] [2016] FCA 571
[6] [2016] FCA 760
[7] [2017] FCA 579
[8] [2017] FCA 326
[9] [2018] FCA 624
[10] [2018] FCA 784
None of the grounds on which the applicant relied set out propositions of fact or law to indicate the existence of jurisdictional error of the sort canvassed in Craig v State of South Australia[11] or Minister for Immigration and Multicultural Affairs v Yusuf.[12] However, the applicant was a litigant in person for whom English may not have been her first language. When she appeared before me on 7 August 2018 I asked her to tell me in her own words what she said the tribunal did wrong in this case. She answered through an interpreter. The answer was as follows –
[11] (1995) 184 CLR 163
[12] (2001) 206 CLR 323
HIS HONOUR: Thank you. Please sit or stand, whatever is most convenient. Tell me in your own words, Madam Applicant, what you say the tribunal did wrong in this case.
THE INTERPRETER: According to me, the decision that they took was wrong because I told them that I tried for my husband to be here. I did not want to divorce my husband. I wanted, according to my culture, to live my family and take it forward, but I tried a lot. But because of the agent’s fault, I could not bring him here, and that’s the reason why they are blaming me. And on the phone, also he tells – told me a lot of times that if you come here, I do this to you. But I told this to the tribunal, but they did not believe me. They threatened my parents as well that your daughter has cheated and – but my parents said it’s not her fault at all. I have a small daughter. If anything happens, who is going to be responsible for that?
HIS HONOUR: You say in your grounds to this court that the tribunal didn’t give you a fair hearing.
THE INTERPRETER: No.
HIS HONOUR: What do you say it did wrong?
THE INTERPRETER: I told them that I did have a lot of fears regarding going back, but they did not believe me. I told them the truth, but they did not believe what I said. If I go back, I will face harm. They did not believe that.
HIS HONOUR: Anything else?
THE INTERPRETER: When I lodged my application with the court last year, I was in discussion with Victoria Legal Aid. They did not tell me till last – this May that they’re not able to help me. 23 July, your Honour, that they gave their last decision that they’re not able to help me. I did not have the money, nor the time, to consult with anybody or get any help. There was very little time, and that’s the reason why no one was able to help me.
Her answer revealed that the tribunal did not believe her. It also revealed her concern for her daughter. Neither of those matters, in and of themselves, indicated jurisdictional error by the tribunal. It was open to me to have delivered ex tempore reasons dismissing this proceeding. However, instead I elected to investigate the applicant’s case in greater detail as it frequently falls to this court to detect and correct jurisdictional error especially where an applicant’s status as an unrepresented litigant renders the applicant unequipped to better advance his or her own interests. Let me therefore address each of the five grounds on which the applicant relied.
Ground one
Under this ground the applicant contended that she was not afforded procedural fairness because the tribunal did not allow her a fair, meaningful or reasonable opportunity to respond to adverse information. It seemed she was seeking to invoke the principles arising from the High Court’s decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[13] Yet she failed to identify the so-called adverse information that was not put to her. I agree with the minister’s contentions that the tribunal based a large amount of its reasoning on the information that the applicant herself gave the tribunal. The applicant did not say so in as many words but, to the extent that she made any complaint about country information, s 424AA of the Migration Act did not require the tribunal to give particulars for her response. In any event, it was apparent from the tribunal’s reasons that the country information relevant to any particular issue was canvassed with the applicant.
[13] (2006) 228 CLR 152
It must be pointed out that the applicant had the onus of establishing jurisdictional error, a proposition made by the High Court in Minister for Immigration and Citizenship v SZGUR.[14] The minister was not required to make out the applicant’s case for him or her as was held in Abebe v Commonwealth of Australia.[15] It is up to the applicant to provide his or her evidence in sufficient detail as to enable the tribunal to establish the relevant facts, as the Full Court held in Minister for Immigration and Multicultural Affairs v Lay Lat.[16] Further, the tribunal is entitled to reject a claim even in the absence of positive rebutting evidence simply on the basis that it is not satisfied about the claim, as was held in Selvadurai v Minister for Immigration and Ethnic Affairs,[17] Mukto v Minister for Immigration and Multicultural Affairs[18] and SZSQL v Minister for Immigration and Border Protection.[19]
[14] (2011) 241 CLR 594
[15] (1999) 197 CLR 510
[16] (2006) 151 FCR 214
[17] [1994] FCA 1105
[18] [1999] FCA 1801
[19] [2015] FCA 294
It seemed to me that the claims advanced by the applicant were properly addressed by the tribunal, as the tribunal was at law required to do and which I explained BCF15 v Minister for Immigration and Border Protection.[20] It also seemed to me that the tribunal gave all claims advanced by the applicant proper, genuine and realistic consideration as it was required to do according to the High Court’s holding in Minister for Immigration and Citizenship v SZJSS.[21]
[20] (2016) 314 FLR 291
[21] (2010) 243 CLR 164
No error was shown in relation to ground one.
I dismiss it
Ground two
Under this ground the applicant contended that the tribunal acted unreasonably by failing to provide a fair and meaningful opportunity to comment on or respond to relevant matters.
As with all other grounds, in respect of this ground no particulars were given of this contention. An applicant who complains about some defect in the running of a hearing ordinarily produces a transcript of the hearing so that on an objective basis it is possible to see whether and if so in what way the tribunal hearing was conducted erroneously. That was not done in this case.
In this case the tribunal hearing was rearranged by reason of issues associated with the applicant’s pregnancy. To the extent that the applicant was endeavouring to convey the notion that somehow her pregnancy caused her to be unable to meaningfully participate in the tribunal hearing, it must be observed that the applicant did not adduce any medical evidence of any medical condition from which she suffered at or near the tribunal hearing. The decision of Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)[22] addressed the need for and, in that case, the inadequacy of medical evidence. It seemed to me that the tribunal was entitled to proceed on the basis that nothing put the tribunal on notice that the applicant’s capacity to meaningfully participate in the hearing was in any way impaired.
[22] [2004] FCA 79
I was not persuaded that ground two was made out.
Ground three
Under this ground the applicant contended that the tribunal failed to consider all of the evidence. At the risk of repetition, the applicant gave no details to support the contention made in this ground. It seemed to me that, contrary to the applicant’s contentions, the tribunal did give active intellectual consideration to the claims the applicant advanced. This ground had no merit.
Ground four
Under this ground, the applicant argued that the tribunal failed to give proper reasons.
This was an ambitious ground. The tribunal devoted 112 paragraphs of reasoning to expose its pathway of logic at which it arrived at its conclusion to affirm the delegate’s decision. Far from the tribunal’s reasons being somehow inadequate, in my view the tribunal’s reasons in this case were perfectly satisfactory.
Let me explain.
In the recent Full Court decision in DAO16 v Minister for Immigration and Border Protection,[23] it was pointed out that a decision maker’s reasons must deal with fundamental aspects of the party’s case. The court held that simply stating in reasons that adverse findings were open, for example, was inadequate as to do so merely asserted a conclusion and it did not expose the decision maker’s pathway of reasoning.
[23] [2018] FCAFC 2
It has been said time and again that reasons are one of the defining characteristics that marks a court apart from other decision making bodies. The High Court so held in Wainohu v New South Wales[24] and in Assistant Commissioner Condon v Pompano Pty Ltd.[25] It has also been said many times that a failure to give adequate reasons may amount to an error of law. The learning on that issue is of considerable longevity. It includes Pettitt v Dunkley,[26] Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd,[27] Misfud v Campbell,[28] SZKLO v Minister for Immigration and Citizenship,[29] BKL26 vMinister for Immigration and Border Protection[30] and COZ16 v Minister for Immigration and Border Protection.[31] Equally, reasons should be given in any case in which an appeal lies, as the High Court pointed out in Public Service Board (NSW) v Osmond.[32] Writing extra-judicially, former Justice of Appeal the Honourable Justice Mark Weinberg canvassed the sufficiency of reasons in his paper Adequate Sufficient and Extensive Reasons.[33]
[24] (2011) 243 CLR 181
[25] (2013) 252 CLR 38
[26] [1971] 1 NSWLR 376
[27] [1983] 3 NSWLR 378
[28] [1991] 21 NSWLR 725
[29] [2008] FCA 735
[30] [2016] FCA 802
[31] [2018] FCA 46
[32] (1986) 159 CLR 656
[33] The Honourable Justice Mark Weinberg, Adequate Sufficient and Extensive Reasons (paper, Judicial College of Victoria, 4 March 2014)
The tribunal’s reasons in this case were sufficient. They addressed the fundamental aspects of the applicant’s case. They considered each claim the applicant advanced.
I detected no error. This ground failed.
Ground five
Under this ground the applicant asserted that the tribunal failed to conduct the merits review in the manner required by law. I disagree. The tribunal correctly identified each claim the applicant raised. It then properly consider each claim. In many instances the tribunal –
a)rejected the applicant’s claims on the basis of inconsistencies in her version of events;
b)rejected the applicant’s claims on the basis that the applicant was not credible on the point; or
c)accepted aspects of the applicant’s claims.
As the Full Court recently explained in AVQ15 v Minister for Immigration and Border Protection,[34] inconsistencies in an applicant’s version of events on material issues may properly support a tribunal’s conclusion to reject one or more aspects of an applicants claims.
[34] [2018] FCAFC 133
Similarly, the same Full Court recently extensively reviewed the authorities on adverse credibility findings and whether or not a failure to take into account relevant material by reason of a credibility finding amounts to jurisdictional error. I have considered the tribunal’s reasons with the observations of AVQ15 v Minister for Immigration and Border Protection[35] in mind. I detected no error.
[35] Ibid
Conclusion
All grounds failed. This application for judicial review must be dismissed and I so order. I also order the applicant to pay the minister’s costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC
Date: 24 October 2018
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