AIU16 v Minister for Immigration
[2018] FCCA 2104
•15 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIU16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2104 |
| Catchwords: MIGRATION – Protection visa – application for review of Tribunal’s decision affirming delegate’s decision not to grant visa – need to avoid resort to transcript on judicial review – whether Tribunal made adverse credibility findings that are not logical or rational whether Tribunal misunderstood or misconstrued evidence – Tribunal’s conclusions reasonably open – whether Tribunal failed to comply with ss 424AA and 424A – whether Tribunal failed to draw applicant’s attention to an issue in the review – grounds of review not made out – no jurisdictional error – application dismissed. |
| Legislation: Evidence Act1995 (Cth), s.144 Migration Act 1958 (Cth), ss.36, 65, 414, 424, 424A, 424AA, 425, 476 |
| Cases cited: ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103 BJP15 v Minister for Immigration [2017] FCA 613 Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 NABE v Minister for Immigration (2004) 144 FCR 1 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 135 FCR 567 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SAAP vMinister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 |
| Applicant: | AIU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 287 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 27 April 2017 |
| Date of Last Submission: | 3 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 15 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Ms Lucas |
| Solicitors for the Respondents: | The Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed at $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 287 of 2016
| AIU16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 4 April 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 January 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
Background
The applicant, an Indian Punjabi national aged 29 years first arrived in Australia in May 2008 as the holder of a student visa. She was granted a subsequent student visa on 12 December 2012. On 15 January 2014, her student visa was cancelled. On 5 May 2014, the then Migration Review Tribunal set aside the decision to cancel the visa.
On 7 August 2014, the applicant applied for a Protection (Class XA) visa.
As set out in her visa application and an attached statement, the applicant claimed to fear death, harassment and mental torture from her parents and brother if she was to return to India as she had married without the consent of her parents. The applicant’s statement described the circumstances in which she had met a man online and then formed a relationship which, when raised with her parents, was opposed by them.
Despite her parents stated opposition to the relationship, the applicant returned to India with her partner where she was married in July 2011. The applicant also said that because of her fear of repercussions from her parents the marriage was not registered until 2012. The applicant’s relations with her husband were complicated on account of his putting her under pressure to apply for a visa. The applicant’s partner eventually obtained a visa and he too came to Australia. At some stage thereafter, the applicant’s parents discovered the fact of the marriage when the applicant confessed that that was so. The applicant claimed that her father and brother have said that they would rather be gaoled for killing her than to tolerate her marriage. The applicant’s marriage has foundered and she said that her parents have broken all ties with her.
On 15 September 2014, the applicant was invited by the Department to attend an appointment on 30 September 2014 to provide personal identifiers. The applicant did not attend that appointment and made no contact with the Department to arrange a further appointment.
On 2 January 2015, a delegate of the Minister refused the visa application. The delegate found that the applicant was not a person to whom Australia has protection obligations. The delegate’s decision record noted that as the applicant had not attended an interview, it had not been possible to explore her claims to protection in further detail. The delegate observed that the applicant had provided no explanation as to why she would be unable to relocate in an area other than the Punjab (her parent’s place of residence) as India had a land mass spanning 3.287M km2 and a population of over 1.3 billion people. The delegate considered that the applicant’s claims were vague and lacking in detail in critical respects, and otherwise lacked credibility.
On 28 January 2015, the applicant lodged an application at the then Refugee Review Tribunal for a review of the delegate’s decision.
On 17 September 2015, the applicant was invited to appear before the Tribunal on 23 October 2015 to give evidence and present arguments relating to the issues arising in her case. On that date, the applicant appeared before the Tribunal where she gave evidence, part of which it is necessary to refer to below. As the applicant’s written submissions noted, the only written material before the Tribunal was her statement.
On 20 January 2016, the Tribunal made a decision affirming the delegate’s decision to refuse the visa application and provided a statement of its reasons for that decision (Reasons).
Tribunal decision
The Reasons were arranged in an orthodox manner and set out details of the application for review, applicable legal principles, its consideration of the claims and evidence, and its assessment of the claims before stating its conclusions and decision.
The only attack on the Reasons was focused upon the Tribunal’s assessment of the claims.
In its assessment of the claims the Tribunal: identified the issue in the application; addressed the legal principles applicable to findings upon the credibility of an applicant; considered some of the applicant’s claims to be unsubstantiated and not to be reasonably believable and concluded that the applicant was not a credible witness; summarised the issues where it had accepted the applicant; identified the claims which it found difficult to believe; rejected the claim that the applicant had married without her family’s knowledge or consent; acknowledged DFAT reports which confirmed that honour killings occurred, including in the Punjab; rejected the claim that the applicant’s father or brother would kill her in an honour killing; considered the stigma attaching to divorce in India; considered the applicant’s claim that she was at risk of harm from her father and brother and found that the applicant would not face a real risk of harm. As appears below, although it had not been a claim advanced by the applicant, the Tribunal also found that she would not face such a risk from the wider Punjabi community.
The Tribunal was not satisfied that the applicant’s claims were credible or reliable and did not accept that she had participated in a Sikh wedding and later registered the marriage without the knowledge or consent of her family or that her family had withdrawn its support or had broken off relations with her. It also rejected the claim that the applicant’s father or brother would avenge their honour by killing her.
Based upon its findings and having considered all of the evidence individually and cumulatively, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution or that there were substantial grounds for believing she faced a real risk that she would suffer significant harm for any reason. The Tribunal concluded that Australia did not in those circumstances owe the applicant protection obligations under paras 36(2)(a) or (aa) of the Act. Accordingly, it affirmed the delegate’s decision to refuse the application.
Procedural History
On 16 February 2016, the applicant filed an application for judicial review of the Tribunal decision together with an affidavit in support which exhibited a copy of the Reasons, but did not adduce further evidence in support of the application for review.
By a Response filed on 22 February 2016, the Minister contended that the decision under review was not affected by jurisdictional error and sought that the application be dismissed.
On 4 April 2017, the applicant filed an amended application together with an affidavit in support exhibiting a copy of the transcript of the hearing before and Tribunal.
Consideration
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476 of the Act. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Certain criteria for protection visas are those set out in s 36 of the Act.
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[1] Minister for Immigration and Citizenship v SZMDS.[2] Thus, if the criteria for the grant of a protection visa are satisfied, the Tribunal must grant the application or, if not so satisfied, the visa application must be refused.
[1](2004) 78 ALJR 992, [37]-[38].
[2](2010) 240 CLR 611, [40], [102].
By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied.[3]
[3]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
The applicant advanced four grounds of review.
Ground 1 – irrationality
Ground 1 reads:
The Tribunal made findings that are not logical or rational, as set out in the submissions.
The applicant submitted that if a Tribunal made findings that were not logical or rational, and based its decision in whole or in part on those findings, to do so would amount to jurisdictional error, citing Minister for Immigration v SZMDS (2010) 240 CLR 611.
The applicant submitted that the reasoning disclosed by the Reasons at [64]-[68] was not logical or rational.
The Tribunal set out at [64], six examples of where it had found the applicant’s evidence to be vague and evasive. The applicant characterised these as being adverse credibility findings. It may be accepted that adverse findings of fact founded upon adverse credibility findings may give rise to jurisdictional error. Such findings are not immune from judicial scrutiny: CQG v Minister for Immigration and Border Protection [2016] FCAFC 146, [37]-[38] (McKerracher, Griffiths and Rangiah JJ); ALE16 v Minister for Immigration and Border Protection [2017] FCA 115, [32] (Griffiths J); AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 at [20], (Tracey J).
It is convenient to address each of the challenged findings in turn.
Example 1 – father’s resistance to study
The Tribunal stated that:
At the hearing, the applicant emphasised that her father was not willing to agree to her studying anything other than Hospitality. When, the Tribunal sought an explanation for her father’s views, the applicant was evasive and not able to provide any reason. The applicant presented as an intelligent and articulate person, and the Tribunal found her evasiveness in this aspect raised questions about the truthfulness of her account.
I reject the applicant’s submission that this finding was ‘dubious.’ To my mind there was nothing dubious in the Tribunal enquiring of the applicant as to her reasons why her father had not been willing to agree to her studying anything other than Hospitality. The Tribunal found that the applicant presented as an articulate and intelligent person. She was the person who had had an exchange with her father in relation to her studies and she would be the person most immediately able to shed light on any reasons given by her father for the view he had expressed or any reasons which she may have held in relation to the matter.
Example 2 – first contact with husband
The Tribunal stated that:
The applicant initially stated that she did not know how her husband got her name from facebook and stated that it was random. When pressed, the applicant stated that they were connected because they were both members of a group called the Golden Temple, an on-line Sikh religious group. The Tribunal found her evasiveness on this point raised doubts about the manner of their meeting.
The applicant relied upon the transcript of evidence at T.13.6ff, submitting that her evidence had not been evasive on this point. While resort to transcript should be avoided, that approach was not adopted: cf Minister for Immigration and Border Protection v Aulakh [2018] FCAFC 91, [157] (Mortimer J, Tracey and Moshinsky JJ agreeing).
In the absence of objection, I have examined that transcript. The applicant’s evidence in relation to the circumstances in which she had met her future husband on-line began by her stating that she did not know how the fellow had made contact with her. She then gave evidence that the fellow had, in effect, pestered her to become an on-line friend and that she had kept deleting his communiques until eventually they started talking on-line. The applicant then said that she and her future husband were members of a Facebook group named Golden Temple (being a temple located in Amristsar which is of particular significance to Sikhs), adding that her future husband was from Amristsar and that although she had been very religious she was no longer so.
The respondent submitted that there was nothing evasive about the evidence that was given by the applicant in relation to this issue.
It will be recalled that the finding made by the Tribunal at [64] was that the applicant’s evidence had been vague and evasive in several respects and that some examples of such evidence were provided. I do not ignore that the Tribunal had the benefit of seeing and observing the applicant when she gave her evidence.
I do not accept the submission that the applicant’s evidence on this issue was not evasive. The Tribunal was apparently struck by the applicant’s explanation of the circumstances in which her future husband had first contacted her and seemingly troubled that the evidence had started from a position that the applicant did not know how the fellow had known of her identity to be able to contact her and then disclosed that they had been members of the same Facebook group. While reasonable minds may differ as to the proper interpretation to be placed upon the transcript of events, I consider that this finding was reasonably open.
Example 3 – hotel stay with future husband
The Tribunal stated that:
The applicant could not recall the name of the hotel in Amritsar in which she stayed for 21 days. She could not recall the name of the town where she was married. The Tribunal considered these to be points that it would be reasonable to expect the applicant to be able to recall. The applicant’s vagueness in these respects raises doubts about the veracity of her claims.
I reject the applicant’s submission that it was difficult to see how this finding was relevant. The applicant’s evidence was that she could not recall the name of the hotel at which she and her on-line friend had first stayed (for a period of 20-22 days). In the context of the Tribunal having cited some examples of evidence it which found relevant to the applicant’s credibility, her evidence that she could not remember the name of the hotel where she had first stayed with her future husband was relevant. No less so was her evidence that she could not remember the place where she had been married.
Example 4 – husband’s visa details
The Tribunal stated that:
The applicant was vague in relation to timeframes connected with her relationship and her husband’s visa details. For example, she stated that it was a couple of months between her return to Australia and providing her husband with documents. When prompted later by the Tribunal, she agreed that it was over 18 months before she provided the documents needed for her husband to come to Australia.
I do not accept the applicant’s submission that this finding was irrelevant. It was entirely open to the Tribunal to consider and cite the evidence on this issue as an example of where the applicant had been vague.
Example 5 – father’s hospitalisation
The Tribunal stated that
The applicant was evasive in relation to significant issues in relation to her claims. When prompted by the Tribunal for more information, she stated that her father had fainted, become unconscious and in a critical position because of her actions, but that when he came out of hospital, she called him and said I know you’re sick but I need money. He refused because he wanted nothing to do with her. She stated that she had told the Migration Review Tribunal that she had not re-enrolled because her father had not been able to send her money for the next part of her course because he had been in hospital, and she asked a family friend to write a letter confirming this. She stated that she did not think she needed to mention why her father had not provided the money and that she had borrowed $5,000 from a friend for the course. The Tribunal found this explanation expedient and formed the view that the applicant was not reliable in her evidence in this respect.
The applicant submitted that this finding was difficult to understand. While the applicant focussed upon the Tribunal’s reference to the applicant’s evidence as to the circumstances in which her father had ceased providing financial support, the burden of this finding was, in my opinion, related to the applicant’s response.
As detailed by the Tribunal, the applicant had explained that her father had been hospitalised and for that reason unable to provide further financial support. However, the Tribunal went on to state that “when he came out of hospital, she called him and said I know you’re sick but I need the money.” When questioned as to this issue and the evidence given by the applicant at the earlier Tribunal hearing, the Reasons record that the Tribunal found the applicant’s evidence for not having mentioned the fact of her father’s hospitalisation to be ‘expedient’. I consider that this finding was reasonably open.
Example 6 – inherently questionable claims
The Tribunal stated at [65] that:
The Tribunal found a number of claims to be difficult to believe. For example, while the Tribunal is willing to accept that at 21 years, the applicant may have been impressionable and in love, the Tribunal has difficulty in believing that she returned to India in 2011 using money she borrowed from friends for a clandestine marriage ceremony; and that in 2012 she returned again to India and took the very unusual step of surprising her family with a visit. As mentioned above, the applicant presented as an intelligent person, and while recognising that she was relatively young, the Tribunal finds it difficult to believe that she has no documentation at all of her marriage ceremony or registration because at the time she did not think this was important. These aspects raise serious questions about the applicant’s credibility.
The applicant submitted that the findings at [65] were untenable, grounding this submission that as a matter of common experience it was not a ‘very unusual step’ of a person living abroad to surprise their family with a visit home. Passing beyond the fact that the submission was based on matters of common experience[4], at its highest, the applicant’s evidence on this issue represented one point across a spectrum of possibilities, depending upon the circumstances in which a surprise visit may take place. The applicant’s surprise visit was not for the purpose of, for example, attending a family wedding, funeral or other significant family event. Instead it appears to have been for the distinct purpose of arriving without notice so as to surprise them with the fact of a wedding which, on her claim, had been opposed by her family to an extent that her father and brother had at some point threatened to avenge their honour by killing her.
[4]See s 144(1), Evidence Act1995 (Cth).
Even if the applicant’s focus on that issue is accepted, it was well open to the Tribunal to find the other matters addressed by the Reasons at [65] to be difficult to believe. On the one hand, the applicant, then aged 21 years, had apparently chosen to travel to India to meet her on-line future husband but had had to use borrowed funds to do so and then participated in a clandestine marriage only to return to India a year later to surprise her family with a visit. The Tribunal was also entitled to consider the applicant’s evidence that she had not thought it important that she had produced no documentation relating to the marriage to be difficult to believe. The Tribunal was entitled to hold that sense of disbelief in the context that the applicant was found to be intelligent and articulate and further, that the applicant was being afforded an opportunity to present evidence on the issues relating upon the delegate’s refusal of her protection visa application.
Of the eight adverse credibility findings that had been made by the Tribunal, the applicant accepted that she made no challenge to three of them and submitted that those adverse credibility findings were open.
It is well settled that considerable caution must be exercised before too readily acceding to a proposition that adverse credibility findings expose jurisdictional error. This is so if only because an assertion of irrationality or illogicality may be employed to advance what is in truth an attack on the merits of the Tribunal’s decision: AMT15 [2018] FCA 366 at [20] (Tracey J), citing Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, [52], [54]-[56] (Wigney J).
The applicant submitted that if the Court accepted that any one of the adverse credibility findings referred to above were not logical or rational, they each fed into the Tribunal’s overall conclusion at [68] that upon consideration of all of those factors, individually and cumulatively, concerning the applicant’s credibility, the applicant was not a credible witness. I do not accept that submission. In my view, it was well open to the Tribunal to reach the ultimate conclusion that the applicant was not a credible witness. The present was not a case in which the Tribunal adopted a short cut approach of, for example, disbelieving the applicant on one matter and disregarding the entirety of the remaining evidence that was before it. It is not to the point that the Tribunal’s individual consideration of the examples cited are matters about which reasonable minds may differ. Whether or not some of the individual considerations may have been susceptible to criticism, the Tribunal was reasonably entitled, upon a cumulative assessment of the applicant’s evidence, to conclude that she was not a reliable witness: cf Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188, [33]-[34] (Gilmour, Markovic and O’Callaghan JJ).
I am not satisfied that the Tribunal’s findings were illogical or irrational in the requisite sense so as to characterise the Tribunal’s decision as being affected by jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131], [133]; [135] (Crennan and Bell JJ). In particular, I consider that there was nothing extremely illogical or irrational in the Tribunal’s findings: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148]-[149], (Robertson J); SZUXN, [2016] FCA 516, [52] (Wigney J).
Ground 1 is rejected.
Ground 2 – misunderstanding of the evidence
Ground 2 reads:
The Tribunal misunderstood or misconstrued the evidence of the applicant, in taking it out of context, and by wrongly ascribing to the applicant evidence which was simply not correct.
The applicant submitted that one of the critical bases on which the Tribunal determined the review was that “the applicant agreed with the Tribunal’s observation that her father’s financial and other support to her as a 19 year old daughter ... was not the action of a conservative traditional Sikh man”: Reasons, [69]. The applicant submitted that this statement formed the basis of the finding that the applicant’s father was, in fact, not a conservative traditional Sikh man and so, as the Tribunal reasoned, would not commit an honour killing. The applicant relied upon a passage of evidence given by the applicant as T.7 as follows:
(TRIBUNAL) What do you mean? (APPLICANT) You know, like, obviously he wouldn't let me come here all by myself at the age of 19. But then I was - I convinced them, like, I will not do anything of such kind of things which you are scared of that I might do, that might hit your dignity or anything. I will just focus on my studies, that’s all, and even I wanted to do that thing only. I just wanted to my studies, that’s all. That was my motive when I came here, just studies and studies. That's it. I just wanted to get a - achieve a degree.
(TRIBUNAL) All right? (APPLICANT) Even I - it was a miracle for me, like, my father let me come here. I was shocked.
(TRIBUNAL) It would seem to me - yes - that this is not the action of someone who is very traditional? (APPLICANT) Yes, even it was shock for me.
The applicant submitted that read fairly, the applicant was not agreeing with the proposition that her father was not a conservative Sikh man, and so, would not commit an honour killing but rather that she was agreeing with the proposition that, knowing him to be a conservative Sikh man, she considered it to be a ‘miracle’ and to her a ‘shocking’ step that he would even allow her to come to Australia to study.
A failure to deal with a claim which may be dispositive of the application for review can constitute jurisdictional error. For that reason, where a Tribunal makes an error of fact in misunderstanding or misconstruing important evidence and based its claim on that erroneous view, this may amount to jurisdictional error. It may constitute such an error because it is tantamount to a failure to consider the claim: NABE v Minister for Immigration (2004) 144 FCR 1, [63] (Black CJ, French and Selway JJ); Minister for Immigration v SZRKT (2013) 212 FCR 99, [113] (Robertson J). In my view a fair reading of the Tribunal’s findings in relation to this issue requires that it be read in the context of [69] as a whole. It reads:
The Tribunal has also considered the applicant’s claim that her father, her brother and all her family, will kill her if she returns to India because they are strict and conservative Sikhs and that she has humiliated them because she has married without her family’s consent someone who they will consider unsuitable, noting that the applicant claimed at the hearing that her husband is not well educated and is of a lower caste than her family. In consideration of this claim, the Tribunal accepts that it is possible that the applicant’s ex-husband is less educated than the applicant and from a lower caste than the applicant. The Tribunal has also noted country information from 2015 that there is significant social pressure for individuals to marry within their own caste and that so called ‘honour’ killings where women had married against family wishes occur, especially in the north of India. However, the Tribunal has also considered evidence that her father and brother do not hold strict and conservative Sikh views such that they will harm or kill her. At the hearing the applicant agreed with the Tribunal’s observation that her father’s financial and other support to her as a 19 year old daughter to undertake study and stay by herself overseas, which he continued for a long period, was not the action of a conservative traditional Sikh man who would commit an ‘honour’ killing. While the applicant stated it was a miracle that he agreed, and that he trusted her to act responsibly, the fact remains that her father did agree to her prolonged stay in Australia and financed her stay for five years. The applicant describes her father supporting her plans and taking responsibility for organising her study through an agent, even though this meant that she was not initially enrolled in her preferred course. On the basis of these actions, the Tribunal does not accept the applicant’s claim that her father has strict and traditional Sikh values such that he would harm her in any way, or kill her, to protect his ‘honour’ in the event he was humiliated by her marriage or any other conduct.
I do not consider that on a fair reading of [69] that the Tribunal made a finding that the applicant had agreed in the proposition that her father was not a conservative Sikh man. In my view it is clear that it did not do so. To the contrary, I agree in the submission made on behalf of the Minister that the Tribunal had merely noted the applicant’s agreement with the proposition that the conduct in even allowing the applicant to study overseas at the age of 19 years and of lending financial support to her for that purpose was itself miraculous and shocking to her in the sense that she expressed disbelief that he would ever agree to do so.
As I read the findings made at [69], I also consider the Tribunal’s conclusion that, even in allowing the applicant to study overseas at the age of 19 years and of lending financial support to her for that purpose was itself miraculous and shocking to her, was a conclusion that was reasonably open: Minister for Immigration and Border Protection v Aulakh [2018] FCAFC 91, [119]-[120] (Mortimer J).
I do not accept that the Tribunal misunderstood or misconstrued her evidence. Ground 2 is rejected.
Ground 3 – alleged failure to provide information
Ground 3 reads:
The Tribunal failed to comply with ss 424AA and 424A with respect to the information arising from the earlier Tribunal decision in relation to her student visa.
The applicant submitted that part of the reason why the Tribunal had affirmed the delegate’s decision was “the purported inconsistency in relation to the evidence given by the applicant at an earlier Tribunal hearing (in connection with her student visa).” It was then submitted that the fact that the applicant had given ‘this evidence’ was a piece of information within the meaning of ss 424AA and 424A.
At a threshold level, the submission was stated at such a level of generality that it was difficult to fix upon what it was that the applicant said constituted ‘this evidence’ for the purposes of engaging ss 424AA and 424A of the Act. In the course of oral submissions, attention was drawn to the applicant’s evidence at T.36 which I have examined. In particular, at lines 5 and 45:
a)the applicant had been referred to a written statement that she had provided to the earlier Tribunal which had set aside the decision to cancel her student visa;
b)the applicant’s written statement referred to a conversation with her father about money;
c)the applicant had been asked why she had not told the earlier Tribunal that her father had been afflicted by illness and for that reason unable to provide money to her for her study.
The applicant concluded by stating that she had not thought it necessary to tell the earlier Tribunal of her father having been hospitalised.
Upon the basis of this transcript, it was submitted that the Tribunal had not complied with s 424AA(1)(b) in relation to ‘this information.’
The difficulty with the submission emerges at three levels.
First, the evidence turned in the first instance on the contents of a written statement that the applicant had provided to the earlier Tribunal; that is, it was at least to this extent, information which was already held by the applicant. Since the applicant was in possession of her own statement, this was information to which the obligation in s 424A(1) did not apply: see s 424A(3)(b)-(ba); cf Minister for Immigration and Citizenship vChamnam You [2008] FCA 241 at [16] (Sundberg J).
Secondly, insofar as the complaint rested on an alleged failure to provide the applicant with information, the complaint required consideration of the nature of that which had not been so provided. The supposed information lay in a question by the earlier Tribunal as follows:
Yes, and in that statement you said that this was why he would not provide finances to you. Why didn’t you tell the MRT what the situation was?
Thirdly, I reiterate the principle that resort on judicial review to transcript for the purposes of supplementing, interpreting or bolstering the reasons of a Tribunal should, in general be avoided: Minister for Immigration and Border Protection v Aulakh [2018] FCAFC 91, [157] (Mortimer J); see also AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103, [58] (Tracey, Mortimer and Charlesworth JJ).
Section 424A concerns the subjects Information and invitation given in writing by Tribunal. Where it applies, sub-s 424A(1) provides that the Tribunal must, amongst other things, give to the applicant, in a way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. An alternative mode of complying with the obligation to provide such information is afforded by s 424AA which allows that a Tribunal may do so in the course of a hearing in the manner which it prescribes.
The applicant’s complaint was that the Tribunal was obliged to put her on notice that information relating to her credibility would be the reason, or a part of the reason, for affirming the delegate’s decision to refuse the visa. It is settled that inconsistences or gaps in evidence do not comprise information for the purposes of s 424: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). In SZBYR, the plurality stated at [18]:
. . . if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:[5]
. . . does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc . . .
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence . . . (emphasis added)
See also, SZTGV v Minister for Immigration and Border Protection (2015) 318 ALR 450, [99], [103], [134], (Perram, Jagot and Griffiths JJ); ALE16 v Minister for Immigration and Border Protection [2017] FCA 115, [29] (Griffiths J).
[5](2004) 206 ALR 471 at 476‑477, citing Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 428; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282‑284.
The question put to the applicant upon which reliance was placed for the purposes of Ground 3 made an enquiry of her as to why she had not made disclosure to the earlier Tribunal of the reason why her father had not provided further financial support to her. Although the question might be characterised in a number of ways, I consider that the Tribunal’s question addressed an absence of evidence or constituted a doubt or inquiry into a matter where detail was lacking. As the authorities make clear, a Tribunal is not obliged to provide particulars by way of information as to inconsistencies for an applicant to comment upon.
On that basis, I do not accept the submission that the applicant had given evidence which constituted “a piece of information within the meaning of ss 424AA and 424A.” Section 424A operates only at the point at which the Tribunal has information and has determined that that information would be the reason, or a part of the reason, for affirming the decision under review: VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 291, [31], (Gray J); SRFB vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 252, [48], (Ryan, Jacobsen and Lander JJ); cf SAAP vMinister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, [56] (McHugh J), [154] (Kirby J), [184]-[185], [200], (Hayne J) (diss’ [14] (Gleeson CJ), [124] (Gummow J). It was inherent in the nature of the hearing before the Tribunal that, unless or until the applicant answered the question which was put to her, the Tribunal had no information which might engage s 424A.
Following the hearing, the applicant sought to rely upon the decision in BJP15 v Minister for Immigration [2017] FCA 613. Although I might (and on reflection should) have declined to do so, I acceded to a request that the parties be permitted to put a short written submission in relation to BJP15. By the applicant’s submission, it was said that BJP15 was “on all fours” with the present case. By contrast, counsel for the Minister submitted that BJP15 was readily distinguishable.
In BJP15, a Tribunal had proceeded upon a mistaken view of the applicant having given inconsistent accounts in his evidence to the delegate as to his being detained overnight or for a couple of weeks. In fact the applicant had never suggested that he had been detained overnight: [2017] FCA 613, [13], [16]. Pagone J considered authorities which held it to be clear that a Tribunal was not obliged to provide particulars by way of information as to inconsistencies to an applicant. On the facts of that case, there was no inconsistency in the applicant’s evidence – the applicant had never said that he had been held overnight. However, his Honour also accepted that a Tribunal was obliged to provide information which contained in terms a rejection, denial or undermining of an applicant’s claim: [15]-[16]. His Honour held at [17]:
The test to determine whether the information is to be provided is not whether it exists but whether it may result in the rejection, denial or undermining of the appellant’s claim unless otherwise excluded from the definition of information or otherwise excluded from the requirement of its provision to the appellant.
Applying that test, Pagone J held that the information – constituted by the Tribunal’s mistaken belief that the applicant had given inconsistent accounts to the delegate – was information which existed, had not been given to the delegate by the applicant and had been taken into account by the tribunal in rejecting, denying or undermining his claim.
Further, in so holding, Pagone J also recognised the conceptual difficulty in requiring information to be provided which did not exist: [17]. If a new expanded construction is to be placed upon the scope and operation of s 424A, this is not a matter for this Court to decide. It appears that BJP15 has not been considered since.
I do not accept that the reasoning in BJP15 requires a conclusion different from that which I have reached respecting the nature of the issues presented by the Tribunal’s question at T 36.45. The Tribunal did not in this case rely upon a mistaken view that the applicant had given inconsistent accounts of her father’s inability to provide financial support to her. It had made an enquiry of her as to her reasons for not explaining to the earlier Tribunal that her father had been hospitalised.
Ground 3 is rejected.
Ground 4 – s 425: implications of being a divorced or separate woman
Ground 4 reads:
The Tribunal failed to draw to the applicant’s attention, an issue in the review in relation to whether the applicant may be exposed to persecution or significant harm by reason of being a divorced or separated woman in India.
By s 414, a Tribunal is obliged to “review the decision.” By sub-s 425(1), a Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The applicant submitted that a hearing under s 425(1) must be procedurally fair, in the sense that the applicant is allowed a meaningful opportunity to give evidence and present arguments in relation to the issues in the review. It was then said that if an issue was not obvious, the Tribunal must draw that to the applicant’s attention: citing SZBEL. It was further submitted that at a level of specificity this principle required that an applicant be put on notice of the actual dispositive issue: ABV16 v Minister for Immigration [2017] FCA 184, [27] (Bromberg J).
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ emphasised that in the context of procedural fairness a consideration of the relevant statutory framework was of critical importance and that unless this was done, the assessment of the issue proceeded at too high a level of abstraction: [26]. It was accepted as trite that procedural fairness imported a requirement of a fair hearing, not a fair outcome and that unless a Tribunal identified some issue other than those arising from the delegate’s decision, an applicant was entitled to assume that those were the only issues arising: [25], [35], [36]. In SZBEL, the Court approved the reasoning in Commissioner for Australian Capital Territory Revenue v Alphaphone Pty Ltd (1994) 49 FCR 576 at 590-591 that if a Tribunal was inclined to reach its decision on review by reference to an issue other than those which had been considered dispositive by the delegate, a failure to notify the applicant would be a denial of procedural fairness.
In Alphaphone at 591, Northrop, Miles and French JJ stated that an applicant’s entitlement to procedural fairness extended to a right to put information and submissions to a Tribunal to rebut or qualify adverse material from other sources adding:
It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from the nature of the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.
It is a fundamental principle that where the rules of procedural fairness apply to a decision‑making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
(emphasis added)
In SZBEL, the Court approved those statements of principle: [29], [32]. See also, e.g., Comcare v Wuth [2018] FCFCA 13, [101]; BRF18 v The Republic of Nauru (2017) 91 ALJR 1197, [59].
To present Ground 4 in context, the applicant submitted that an issue which had arisen in the review, but which had not been an issue before the delegate, was whether the applicant may be exposed to persecution or significant harm by reason of being a divorced or separated woman in India. Country information before the Tribunal suggested that the applicant may face a strong stigma and social rejection: Reasons [73].
The applicant complained that:
Apart from barely asking the applicant whether she is divorced or separated (T33.41), the Tribunal does not mention to the applicant the existence of this ‘issue’ in the review arising from the country information that it had available to it. As this issue arose from country information before the Tribunal, and not available to the applicant, it could not credibly be suggested that it was an obvious issue.
For that reason it was said that the Tribunal did not comply with s 425(1).
In support of this Ground, the applicant relied upon NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 where Allsop J (as his Honour then was), stated at [15]:
The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]–[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. (emphasis added)
Reliance was also placed upon the reasoning in ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 in which Bromberg J held at [21] that s 425 did not operate in a “once-and-for-all fashion” such that any new issues arising after a Tribunal hearing may also generate new obligations on the Tribunal to hold a further hearing: citing SZHKA v Minister for Immigration and Border Protection (2008) 172 FCR 1 at [100]-[103] (Besanko J).
I accept that the obligation to review the delegate’s decision included an obligation to allow the applicant a real and genuine opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. However, to adapt the reasoning in NAVK, taking a practical and common sense approach to the role of an administrative decision-maker, the Tribunal was obliged to deal with the claim expressly made and to deal also with an unarticulated claim that rose in a tolerably clear way on the materials. The Tribunal was not obliged to undertake an independent analytical consideration of the matter or to assess the legitimacy of such claims as it might have divined from the material for itself.
While it was not obliged to do so, the Tribunal at [74] proceeded to consider the position of the applicant and whether she was a risk of harm from the Punjabi community more widely, stating:
While the applicant did not claim that she will face harm from the community in Punjab because she now has the status of a separated/divorced single woman, the Tribunal has considered this aspect of her circumstances. In this consideration, the Tribunal has had regard to the country advice cited above in relation to separated/divorce. The Tribunal has also taken account of its finding above that the applicant is not estranged from her family and finds that she will therefore have the shelter and protection of her family. While the Tribunal accepts that attitudes in the Punjab toward separated women may lead to disapproval of her, the Tribunal is satisfied that there is not more than a remote chance that her family or community or anyone else will harm the applicant for this reason. (emphasis added)
By addressing the issue in [74], the Tribunal considered the question of the risk of harm to the applicant, not merely from her father or brother, but in the wider context of a risk of harm from the Punjabi community.
In my opinion, and as observed above, the Tribunal made its dispositive finding at [73] that while the applicant’s family may not approve of her separated status, it found that she did not face a real chance of serious harm or a real risk of significant harm from her parents because of her status as a separated woman. The applicant’s written and oral submissions explicitly accepted that the applicant had not made a claim of the kind which was identified and dealt with by the Tribunal at [74]. However, in my opinion, the dispositive finding was that made at [73]; namely, that the applicant was not at risk for the reasons which she claimed – an honour killing by her father or brother. The further finding at [74] was to similar effect as that made at [73] but expressed in the context of the risk from the Punjabi community. Again, the Tribunal found that while the applicant might face disapproval from that community, she was not estranged from her family and would have their shelter and protection and would, for those reasons, not face more than a remote risk chance of harm from her family or that community.
In short, the finding at [74] was neither dispositive nor critical to the decision made at [73] that the applicant did not face a real chance of serious harm or a real risk of significant harm.
I reject the submission that the Tribunal did not observe its obligations under s 425. Ground 4 is rejected.
Conclusion
For the reasons above, the applicant’s grounds of review are not made out and no jurisdictional error is disclosed in the decision of the Tribunal.
The application must be dismissed.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 15 August 2018
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