AIM15 v Minister for Immigration

[2016] FCCA 2713

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIM15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2713

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal – application for a Protection (Class XA) visa – no jurisdictional error –application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; (2013) 132 ALD 269; (2013) 296 ALR 525; [2013] FCAFC 33
MZXHY v Minister for Immigration and Citizenship [2007] FCA 622

First Applicant: AIM15

Second Applicant: AIN15

Third Applicant: AIO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 661 of 2015

Judgment of: Judge McNab

Hearing date: 16 August 2016

Date of Last Submission: 16 August 2016

Delivered at: Melbourne

Delivered on: 26 October 2016

REPRESENTATION

The Applicants in Person

Counsel for the Respondents: Ms Briffa

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application filed 19 July 2016 be dismissed.

2. The applicants pay the first respondent’s costs fixed in the sum of $5400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 661 of 2015

AIM15

First Applicant

AIN15

Second Applicant

AIO15

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Nature of Application

1. By their amended application filed on 19 July 2016, the applicants seek judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) made on 5 March 2015. By that decision the Tribunal affirmed a decision of a delegate of the first respondent

   
   

   (“the Minister”) not to grant the applicants’ Protection visas.

Background

1. The background to this matter is accurately summarised in the first respondent’s submissions which I set out below:

   3.The first applicant is a 31 year old citizen of India. The second applicant is her husband and third applicant is their son: CB 11. The first and second applicants were married in 2008: CB 112.

   4.The first applicant came to Australia in June 2009 on a Student visa which ceased on 2 August 2011. The second applicant accompanied her as a dependant on that Student visa: CB 150. On 13 March 2011, the third applicant was born: CB 114.

   5.On 22 July 2011, the applicants lodged an application for a Skilled Graduate visas. Their application was unsuccessful because the first applicant provided no evidence that she met the relevant English language requirements for the grant of those visas. Although, the applicants applied for merits review of the decision to refuse those visas in the Tribunal, they lodged that review application out of time. Accordingly, the Tribunal could not review the refusal decision: CB 150 and 215 at [15].

   6.Since the first and second applicants’ Student visas expired they have held various bridging visas, including bridging visas which allowed then to depart and return to Australia. Between 17 January 2012 and 31 March 2012, the applicants returned to India: CB 215 at [14].

   7.On 29 October 2013, the first and second applicants applied for Protection visas (The Protection visas). The first and second applicants claimed their parents did not accept their marriage because of ‘communal differences’ and had threatened to kill them if they did not get divorced: see,

   
   

   eg, CB 29, 151. The first applicant claimed that, because of the ‘emotional and mental’ torture from their families her and the second applicant could not live together in India after they married: CB 38. She also claimed that their families beat and threatened to kill them and this is why the first and second applicants applied for Student visas in Australia. She further claimed that after she arrived in Australia, she had an abortion after being pressured by her parents: CB 38-40.

   
   

   The applicants claimed that they were attacked when they returned to India in January 2012 and that their families had threatened the third applicant: see, eg, CB 42, 151, and

   
   215-216

   at [17].

   8.On 14 February 2014, the applicants attended a Protection visa interview with an officer of the Department of Immigration and Border Protection (the Department):

   
   CB 151

   .

   9.On 17 February 2014, a delegate of the Minister refused to grant the Protection visas: CB 149-157. The delegate was not satisfied that the applicants’ families opposed their marriage or had threatened to kill them: CB 156.

   10.On 5 March 2014, the applicants applied for review of the delegate’s decision in the Tribunal: CB 159. They provided the Tribunal with a copy of the delegate’s decision shortly thereafter: CB 162-163.

   11.On 22 January 2015 and 5 March 2015, the first and second applicants appeared before the Tribunal to give evidence and present arguments: CB 198, 207.

   12.On 5 March 2015, the Tribunal affirmed the delegate’s decision not to grant the applicants the Protection visas.

Decision of the Tribunal

1. The Tribunal summarised the applicants’ claims and at [16] referred to the documents provided by the applicants in support of their protection claims. At [17] the Tribunal summarises the applicants’ protection claims which was in substance the same as the summary set out above. The Tribunal engaged in a detailed reference to the material presented to it by the applicants that in [26] - [72] included recitation of the conduct of the matter before the Tribunal. The Tribunal sets out the questions asked of the applicants and the responses given. In particular, the Tribunal specifically raises concerns it had with the material submitted by the applicants and parts of the evidence given. By way of example, at [58] the Tribunal states:

   I asked the applicant who provided financial support to the student visa application. She confirmed that it was her parents.

   
   

   I asked her why her parents agreed to provide financial support for both her and the second applicant if they did not approve of the marriage. She replied that she only told her parents that the costs were for her and not for anyone else.

2. In the course of doing that, the Tribunal identified inconsistencies between the applicants’ claims and information provided by them at other times. At [75] the Tribunal found that those inconsistencies “give rise to serious and fundamental concerns with the applicant’s claims”.

3. The Tribunal held at [75]:

   I find that it is far more likely that the applicant’s parents provided financial support for the student visa application in full knowledge that the applicant and second applicant were applying together as a couple. I find that it is also more likely that the reason the student visa application and temporary skilled visa application record the applicant’s address after her marriage to be the home address of the second applicant and his family is that the applicant did go to live with the second applicant after their marriage. I do not accept that the applicant and second applicant would have provided false information about their living arrangements with those visa applications. I also consider it highly unlikely that the applicants would have recorded in the BVB application for a bridging visa be that they were going to live at the second applicant’s family’s home if they had the difficulties with their families that they claimed. I also found the evidence provided by the applicants at the hearing about the reasons they gave for returning to India in the BVB application – that they were returning for the third applicant’s first birthday - despite me questioning them in detail about whether they had other reasons for returning is inconsistent with the purpose of intended travel recorded on the BVB application form. I give significant weight to these inconsistencies as evidence of the lack of credibility of the applicants’ claims.

4. At [76] of its decision, the Tribunal found the explanation provided by the applicants for their significant delay in seeking protection after their return from India in 2012 to be highly implausible. The Tribunal noted that in regards to the claim made by the applicants that the first applicant’s medical and mental health problems were a cause in the delay in lodging the visa application. It found that those health issues arose in 2009 when the first applicant had an abortion, not in 2012 after their return from India.

5. The Tribunal also did not accept the applicants’ claims that when they returned to India in 2012 they had been attacked by armed groups seeking to harm their child, nor did it accept that any members of the applicants’ families or their community disapproved or objected to their marriage. The Tribunal did not accept that the applicants lived separately from their families when they returned to India in 2012, or were mistreated or subject to harm by any members of their families or anyone else in India during that time.[1]

   [1] Tribunal’s decision at [78] – [79]

6. The Tribunal at [79]-[83] did not accept that the applicants held a

   
   

   well-founded fear of persecution for a Refugees Convention reason, as it did not accept that the applicants had married against their families’ wishes or against the wishes of anyone in their local or tribal communities, and did not face serious harm just because they may comprise people who form part of a social group who “have married against local custom” or as a child of that social group.

Grounds of Review

1. The Amended Application filed 19 July 2016 sets out three grounds of review as follows (copied exactly):

   1. The Tribunal failed to complete the exercise of its jurisdiction.

   2. The Tribunal erred by failing to take into account written submissions/ documents and arguments put to it as claims.

   3. The Tribunals finding with regard to a real chance of persecution and real risk of significant harm were based on an incorrect test.

2. In an affidavit sworn by the applicant on 18 July 2016, the applicant expands on these grounds in handwritten submissions.

3. The applicant’s written submissions contained three grounds of judicial review (with particulars) as follows: 

   1)In finding the requirements of the migration act were not met, the Tribunal gave significant weight to only some of the information as evidence to the exclusion of others.

   2)

   The Tribunal erred by failing to take into account written submissions/documents and arguments put to it as claims.

   
   

   In particular, the Tribunal failed to take into account evidence that the third applicant’s address in his passport was the same address of the second applicant, evidence relating to the first and second applicant’s address in their marriage certificate. Ground 2 also refers to a submission that the Tribunal had a “pre-prepared mind” by reason of it giving an oral decision and because of that they are unable to present evidence in the form of a marriage certificate of the first applicant’s husband’s brother as evidence.

   3)Ground 3 asserts that the Tribunal’s finding with regard to a real chance of persecution and real risk of significant harm were based on an incorrect test. It was submitted that the Tribunal engaged in an inaccurate assessment of the evidence and the harm faced by the applicants. It also says that the Tribunal did not give information in relation to this significant risk faced by the applicants on their return to India in 2012. 

Conclusion in Relation to Ground 1

1. In relation to Ground 1, the gravamen of the claim is a suggestion that that the Tribunal erred in giving insufficient weight to evidence given by the applicants in relation to the harm they claimed to face when they returned to India in 2012.

2. In my view, this ground is simply an attack on the fact-finding function and review of the facts by the Tribunal. On my reading of the applicants’ material, the claim is not that the Tribunal ignored information provided to it but that it failed to give sufficient weight to particular information which was said to support the applicants’ claims. For that reason the applicants are asking the court to engage in merits review which is impermissible.[2] The Tribunal considered the applicants’ claims relating to their return to India and the allegation that they were subjected to harm. It rejected the applicants’ claims by reason of concerns regarding the credibility of the applicants, and those credibility findings are clearly set out at [44]-[47], [59]-[60] and

   
   

   [75]-[76]. The applicants gave explanations for delays in seeking a protection visa but it did not accept those explanations. The applicant gave evidence that the delay was caused by her having an abortion [49] and because of her being depressed [61]. The Tribunal did not accept those explanations at [75] and it was not obliged to accept those explanations. Effectively the grounds raised in Ground 1, through the written submissions of the applicants, is an attempt to retry the matters heard before the Tribunal upon which findings of fact have been made. No jurisdictional error is established by Ground 1.

   [2] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1966) 185 CLR 259 at [281] – [282]

Conclusion in Relation to Ground 2

1. The Tribunal specifically made reference to the applicant’s passport at [16(b)] of its decision and the first and second applicants’ marriage certificate at [16(c)]. Otherwise the Tribunal referred to inconsistencies in the applicants’ evidence; put the applicants on notice of what those issues were and why they might cause the Tribunal to doubt their credibility; and they were given an opportunity to respond to those inconsistencies including an opportunity given after briefly adjourning the hearing [68].

2. I do not accept that the delivery of oral reasons following the hearing provides any proper basis for a finding that the Tribunal was affected by bias (see SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280).

Conclusion in Relation to Ground 3

1. The Tribunal applied the correct test in relation to whether the applicants had a well-founded fear of persecution and faced a real risk of serious harm. In my opinion, the applicants have not made out this claim. The Tribunal has set out the correct statutory tests as an appendix to its decision. The Tribunal referred to s.36(2a) of the Migration Act 1958 (Cth) (“the Act”). The Tribunal made specific reference to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 and refers to that decision as authority for:[3]

   The proposition that the ‘real risk’ element of the test in s.36(2)(aa) is the same for s.36(2)(a): namely, is there a ‘real chance’ an applicant will suffer significant harm if returned to their country of nationality? A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility.

   [3] CB 230 at [105]

2. The Tribunal considered at [80]:

   that individuals who marry in breach of local, family and social customs in India may be members of a particular social group comprising “people who have married against local custom” and I accept that children born to parents in such marriages are members of a particular social group consisting of “children of people who have married against local custom”.

3. The Tribunal considered the applicants’ claims but it did not accept that the applicants had married against their families or community’s wishes. That was a factual finding that was open to the Tribunal and to seek to interfere with that finding is simply an exercise in impermissible merits review.[4]

   [4] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272

4. At [76] to [78] of its reasons, the Tribunal considered the applicants’ claims that they were attacked in India in 2012, but did not believe that such an attack took place. It was for this reason that the Tribunal did not accept that the applicants faced risks associated with that attack under the question of complementary protection.

5. The applicants sought to refer to medical evidence and various documents which were not before the Tribunal. I accept the submission that it is not open for an applicant to ask the court to admit new evidence for the purpose of inviting the court to disagree with a factual conclusion reached by the Tribunal.[5]

   [5] MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8]

Conclusion

1. For these reasons, I dismiss the application and order that the first and second applicants pay the Minister’s costs fixed in the sum of $7,020.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 26 October 2016