AIG15 v Minister for Immigration

[2016] FCCA 891

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIG15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 891

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal erred in law by finding that the first applicant fabricated her claims – whether the Tribunal disregarded psychological evidence – whether the Tribunal failed to consider applicants’ claims against complementary protection criterion – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)

SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774
SZSHK v Minister for Immigration & Border Protection [2013] FCAFC 125

First Applicant: AIG15

Second Applicant: AIH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 883 of 2015

Judgment of: Judge Smith

Hearing date: 7 April 2016

Date of Last Submission: 7 April 2016

Delivered at: Sydney

Delivered on: 27 April 2016

REPRESENTATION

The First Applicant appeared in person by telephone

Solicitors for the Respondents: Ms P. Blackadder, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 883 of 2015

AIG15

First Applicant

AIH15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first applicant is a citizen of Pakistan. The second applicant is her husband. The applicants arrived in Australia on visitor visas on 14 August 2013 and lodged an application for protection visas on 3 October 2013. That application was based upon the first applicant’s claims to fear persecution in Pakistan. On 28 March 2014 their protection visa application was refused by a delegate of the Minister and the applicants applied to the Refugee Review Tribunal[1] for review of that decision. The Tribunal affirmed the delegate’s decision on 9 March 2015.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. The applicants now seek judicial review of the Tribunal’s decision. In order to succeed, the applicants must show that the Tribunal’s decision is affected by jurisdictional error. For the reasons that follow, they have not done so and the application must be dismissed.

Background

1. The first applicant claimed that the son of a local politician had taken a liking to her and had become enraged when she rejected his advances. This led to a chain of events including a kidnapping and attempted rape that caused the applicant to go into premature labour and the loss of her first child. She reported this man twice to the police but they took no action. The first applicant also claimed to have suffered a miscarriage when she fell down stairs following a telephone call from the man pursuing her. At an interview conducted by the delegate of the Minister, the first applicant added that the man had fired upon her house.

2. The first applicant also provided an undated letter from a medical practitioner stating that she was suffering from depression and post-traumatic stress disorder following repeated threats to her and her husband’s life in Pakistan.

3. All of these claims were comprehensively rejected by the delegate who made her decision on 28 March 2014. The applicants applied to the Tribunal for review of that decision.

4. In support of their application for review the applicants provided to the Tribunal number of documents including the following: first, a letter from a psychologist dated 10 July 2014 stating that the first applicant “has symptoms that would meet criteria for diagnosis of a major depressive disorder and Post Traumatic Stress Disorder”; secondly, a further letter from a general practitioner stating, amongst other things, that the first applicant was still “getting rumination of her past events and sleepless night (sic) on and off and I personally believe if she go (sic) back to her country she will develop major depression and will get affected with Post Traumatic Stress Disorder”; and thirdly, a letter from a counsellor working for the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors stating that the first applicant had “been greatly affected by her past experiences prior to leaving Pakistan” and expressing an opinion that “her mental health and wellbeing would be at risk if she was forced to return to Pakistan”.

5. The applicants were invited to, and attended, a hearing on 23 February 2015. At the hearing they provided to the Tribunal a letter from an organisation called Centacare stating that the first applicant had been a client of the Personal Helpers and Mentors program since June 2014 and was working hard to successfully improve her quality of life.

The Tribunal’s decision

1. The Tribunal made its decision on 9 March 2015 affirming the decision of the delegate not to grant the applicants protection visas.

2. While the Tribunal accepted that the first applicant had had a child in Pakistan who had died at or soon after birth, it did not accept any of the other claims and found that she had fabricated them to support a claim for a protection visa. It gave a number of reasons for this conclusion including the following:

   i)it found that the first applicant’s evidence that she had been sought by the same man for a number of years not to be credible;

   ii)it found that the first applicant’s travel history was not indicative of someone who feared harm in her own country. In this respect it noted that the applicant had travelled to the United Kingdom in 2012 but only stayed for 10 days when it expected that if her claims were true she would have sought to remain there for a longer period; and

   iii)the first applicant had added a significant claimed during the Departmental interview, namely that the man pursuing her had fired on her home.

3. Having rejected all of the applicants’ claims, it found that there was no real chance of the first applicant or her husband would suffer serious harm for any Convention[2] reason in Pakistan and further that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan that there was a real risk that the applicants would suffer significant harm. For those reasons, the Tribunal concluded that the applicants did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

   [2] Convention Relating to the Status of Refugees done at Geneva in 1951 as amended by the Protocol Relating to the Status of Refugees done at New York in 1967 [1954] ATS 5 and [1973] ATS 37.

Consideration

1. There are three grounds in the application.

Ground 1

1. The first ground is that the Tribunal erred in law by finding that the first applicant had fabricated the entirety of her claims. As might be expected from an unrepresented litigant, the first applicant, who appeared at the hearing by telephone, did not explain how the rejection of her factual claims amounted to an error of law. Her submissions in respect of each ground amounted to an assertion that her claims were true. It is beyond the scope of the Court’s jurisdiction to determine that question.

2. The rejection of the first applicant’s credibility was made by the Tribunal as part of the fact-finding integral to the Tribunal’s obligation to review the decision of the delegate. The Tribunal gave reasons for its rejection of the first applicant’s credibility which revealed that there were logical bases for it. For that reason there was no error of law and the first ground must be rejected.

Ground 2

1. The second ground is that the Tribunal erred when it disregarded the psychological evidence submitted by the applicants. That ground is unsustainable as it is clear from at least the following passage that the Tribunal did consider the relevant psychological evidence:

   [31]In reaching the above conclusions, the Tribunal has had regard to the psychological reports and medical reports in relation to the applicant. The Tribunal has accepted that the applicant has suffered a traumatic experience through the loss of her first child, and a subsequent miscarriage. The Tribunal does not accept these experiences have affected the applicant’s ability to provide evidence or that the loss of her child and miscarriage occurred because the reason she has claimed. The Tribunal accepts that the applicant has seen psychologist in Australia has sought and received counselling. The Tribunal does not accept that it was because she was attacked or salted or sought by [the man] and his associates. The Tribunal does not accept that psychologists have any personal knowledge of the applicant circumstances in Pakistan and considers that their reports are based only on what has been told to them by the applicant. The Tribunal does not accept that the reports by the medical practitioner or the psychologists and councillors overcome the problematic nature of the applicant’s own evidence. Nor is the Tribunal satisfied that they establish that the applicant’s claims are truthful. …

2. The second ground is rejected.

Ground 3

1. The third ground is as follows:

   3.That the Tribunal Member failed to consider my and my husband’s claims under complementary protection.

   First in para 32 the Member finds that my husband and I will not suffer harm for a Convention related issue, then says Accordingly the Tribunal finds that we do not have a well-founded fear if returned to Pakistan.

   In paragraph 33 the Tribunal Member says that for the same reasons as above the Tribunal is not satisfied that there are not substantial grounds for believing that we face persecuted if returned.

   In para 34 again the Member says that we are not owed protection obligations, therefore we do not satisfy the criterion set out in 36(2)(a) or (aa) and it follows that we don’t satisfy the criterion for s 36(2)(b) or (c). This is circular and we have not been considered under complementary protection.

   (Errors in original)

2. The mere fact that the Tribunal applied the factual conclusions made in respect of one criterion to its consideration of a second criterion does not necessarily mean that it has failed to consider the second criterion. There is no jurisdictional error in the Tribunal referring to previous findings of fact in considering the complementary protection criterion: see for example, SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774 at [56] to [57] per Robertson J and SZSHK v Minister for Immigration & Border Protection [2013] FCAFC 125 at [32]. That is particularly so in circumstances where the Tribunal has rejected all of the factual elements of an applicant’s claims that might have supported satisfaction of one or both of the relevant criteria.

3. The third ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 27 April 2016