BBF15 v Minister for Immigration

[2017] FCCA 809

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBF15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 809

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 412(2), 499

Migration Regulations, regs.2.08(1), 4.31A

Cases cited:

SZTMD v Minister for Immigration and Border Protection [2015] FCA 150

First Applicant: BBF15

Second Applicant: BBG15

Third Applicant: BBH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1364 of 2015

Judgment of: Judge Riethmuller

Hearing date: 31 March 2017

Date of Last Submission: 31 March 2017

Delivered at: Melbourne

Delivered on: 31 March 2017

REPRESENTATION

Counsel for the Applicants: Ms Leoncio

Solicitors for the Applicants: Victoria Legal Aid

Counsel for the First Respondent: Ms Lucas

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1364 of 2015

BBF15

First Applicant

BBG15

Second Applicant

BBH15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This case concerns a family from Bangladesh.  The case commenced with the husband and wife bringing applications.  During the course of the proceedings, a child was born to the parties.  The primary applicant is the wife.  She came to Australia in 2009 on a student visa in order to study.  It seems that she had obtained a Masters of Business and a Masters in Management in Bangladesh prior to coming to Australia (see court book p.48). 

2. Although the applicant held a Master’s degree she then commenced studying hairdressing, and undertook that at a private institution called Ozford College in Melbourne.  Thereafter she did an Advanced Diploma in Management; she then went to the Baxter Institute to do a Certificate III in Beauty Therapy.  Oddly, her courses seem to reduce in level of attainment rather than the usual form of increasing in the level of attainment as time went by, in that she went from a Master’s degree level down to Diplomas, and then Certificate level.  Thereafter the applicant returned to Bangladesh. 

3. The applicant says that when in Bangladesh in 2012 she was approached by a man, Mr H, who had a romantic interest in her before she married her husband.  Mr H, it seems, was most disappointed that she did not respond to his feelings and threatened her, on her account, to destroy her life and kill her husband. The applicant claims Mr H had assaulted her when she was pregnant kicking her in the abdomen, and threatened to throw acid on her (an action that is sadly not uncommon in Bangladesh).  In substance, the case turns upon the claims by the wife as to the threats and actions of Mr H against her. 

4. The visa application proceeded to a decision by the delegate, who rejected her application for a protection visa and consequently the application of her husband.  The child was born prior to the delegate’s decision, but the delegate was unaware of that until after the decision was made.  The decision by the delegate did not refer to the child.  The delegate subsequently made a decision with respect to the deemed application for a visa by the child, also refusing the child a protection visa.

5. The applicant then proceeded before the Tribunal with her husband, the second applicant in these proceedings, in order to review the decision of the delegate.  The decision record of the Tribunal also includes the child as one of the applicants before the Tribunal. 

6. At the hearing before the Tribunal, the applicant gave evidence and presented material.  The Tribunal turned to consider her claims, as set out from p.238 of the court book.  It is clear that the Tribunal took a very dim view of the applicant’s credibility; setting out in some detail the evidentiary reasons for finding that they did not accept that the applicant was credible. 

7. Firstly, the Tribunal carefully considered the evidence about the claims concerning Mr H and his interest in the applicant and threats to her.  There were inconsistencies and contradictory evidence with respect to what she knew of him, his political connections (if any), and whether or not she knew that he carried a firearm and the like.  The detail is set out at paragraph [26] as follows:

   26. For example, she referred repeatedly in her written statements to the political connections of Mr [H] and his influential role in the AL, but when asked at the hearing for details of his political connections or the names of his political associates, she was unable to provide them. She stated that she was not interested in these things, she did not know, and her friends who had told her about his profile had not mentioned these details; they had just told her that he was not a good person, but a powerful one. Asked how her friends knew Mr [H], she said that everyone knows everyone in her town. Asked how she knew that he carried firearms, she said that his friends told her. She had not sought details because she was busy and it never occurred to her that Mr [H] would cause such problems for her. However, the applicant claims that Mr [H] caused problems for her in Bangladesh for several years prior to her departure. She claims that he blocked her way in the street making her realise that he intended to harm her; that she moved her place of residence and the location of her business to avoid him; and that for a time she was confined to her house because of him. In my view the applicant's evidence is contradictory and inconsistent, as she claims on the one hand that she did not bother to find out details about Mr [H] because she never thought he would cause a problem for her, yet she claims that he caused significant problems for a significant time prior to her departure. Moreover, given the emphasis in the applicant's written claims on the political connections of Mr [H], which she claims is relevant to his capacity to harm her with impunity, I would expect that if she were telling the truth she would be able to provide more information about his position and his connections. Not only would I expect that it would be normal and natural for a person in the situation the applicant claims to be in to seek as much information as possible about a person who posed a threat to her, but in my view this information would be extremely relevant to her ability to protect herself. The applicant’s inability to provide the details requested indicates to me that the claims in her written statement do not reflect her true experiences, but are made up.

8. There were also observations about her presentation when giving evidence, which told against her, as set out in paragraph [27]:

   27. Similarly, when asked at the hearing how she first came into contact with Mr [H] the applicant notably hesitated before replying; her subsequent evidence about how she knew him and their dealings, and the progress of his harassment over time appeared to me to be vague, lacking in detail and somewhat evasive. Again this suggests to me that the applicant’s written claims are fabricated and do not reflect her true experiences, as she was unable to provide spontaneous and detailed information elaborating on her written claims.

9. The Tribunal Member also considered her claims with respect to an assault upon her causing a miscarriage.  The Tribunal traversed the evidence in this regard and concluded that in the particular circumstances of this case, where the applicant had treating medical practitioners throughout the events complained of, that the absence of supporting medical evidence impacted upon the veracity of the applicant’s claim.  The Tribunal Member said:

   28. The applicant claimed in her written documents that that she miscarried as a result of trauma following the claimed assault by Mr [H] on 10 August 2012. She claimed in her submission of December 2013 that she had suffered permanent damage to her uterus because of the claimed assault. However, the medical evidence submitted does not substantiate these claims. The ultrasound reports provided by the applicant confirm, sadly, that she miscarried in August 2012. However, the reports provide no support for the applicant's contention that she miscarried because of the assault by Mr [H]; they indicate no reason for the miscarriage, and there has been no other medical evidence provided to support this contention, or to support the written claim made by the applicant that she suffered permanent damage to her uterus in the assault. The applicant has given birth to a baby since then, and is currently pregnant again. She has provided no medical evidence relating to her pre- or post- natal care in relation to these pregnancies which mentions any previous trauma or damage to her reproductive organs. Asked to comment on this, she stated in her submission of 5 May 2015 that she and her doctors thought there was lasting damage, but luckily there was not. However, in her submission of 4 December 2013 she wrote that “quite serious injury/injuries and damage occurred in both my body and soul (mind)”; “a great damage in my body-parts had been done (though kicking in my abdomen bearing baby on the 10th August 2012) severely damaging my uterus ...”; and “there had been very strong damage done in my womb concerning me that I might not be a mother for the rest of my life”. In my view the applicant is clearly asserting that actual physical damage had been done in the assault, indicating both a propensity to exaggerate or fabricate claims, and also indicating a willingness to alter her claims if to do so would assist her.

   29. While the absence of supporting medical evidence would not, in some circumstances, be critical, in my view, given the vehemence of the applicant's assertions and her contact with the medical profession over the relevant period, I would expect that medical evidence would be available to support her assertions if they were true. Moreover, while the absence of corroborating evidence would not necessarily, of itself, undermine otherwise credible claims, in my view the applicant's claims considered overall, are far from credible.

10. The applicant had also complained that she had suffered psychological harm and had seen a psychologist around the time of her application.  Arrangements had been made for a government-appointed medical practitioner to assess the applicant, at which event or assessment the applicant had not disclosed psychiatric illness.  The Tribunal identifies this at paragraph [31], saying:

    31. On 29 August 2013 the applicant was examined by a government appointed medical practitioners in relation to the protection visa application. She completed a declaration in which she answered “no” to the questions “Do you suffer, or have you ever suffered, from mental health problems?” and “Have you ever been admitted to hospital and/or received medical treatment for an extended period for any reason (including for a major operation or treatment of a psychiatric illness?”. On examination, the examining physician found the applicant’s “Mental and cognitive status” to be “Normal”.

11. The Tribunal Member was also concerned that the applicant had not indicated these difficulties on a form previously filled in, noting in the context of this case the extent of her educational qualifications, which told against this being an error on her part. 

12. The Tribunal Member also turned to consider inconsistencies in material that the applicant had provided to the Department over time, particularly with respect to her ownership of a beauty salon, where on one occasion she said that she had opened the business in 2005 and on another occasion the applicant said that she started her own beauty-shop business in 2009.  The Tribunal said:

    36.  At the hearing I asked the applicant why she had come to Australia to study hairdressing when she held a Master’s degree in business administration. She replied that she owned a beauty salon, Girls Zone, in Bangladesh, and wanted to improve her skills for the benefit of the business. She said that she opened the business in 2005 and operated it until she came to Australia. She said that she attend the salon every days when she was not attending university classes. However, as discussed at the hearing and in the s.424A letter, the applicant did not provide information about the salon in response to question 23 of the protection visa application form, which asks for details of her employment history since leaving school. Moreover, in the student visa application completed in July 2009, the applicant provided a “Statement of Purpose” in which she stated “I started my own beauty shop “Girl’s Zone” from 1^st Jan, 2009”..

13. Ultimately the Tribunal drew adverse inferences with respect to her inaccurate information provided to the Department over time. 

14. The Tribunal also turned to consider evidence that was provided in the form of a general diary (police report) of the claimed assault.  The Tribunal Member was concerned that there were inconsistencies about whether this had even been reported to the police at the time and claims by the applicant that she had forgotten that a family member had this document until sometime late in the process.  The Tribunal Member did not accept these explanations. 

15. The ultimate conclusions by the Tribunal with respect to credibility were as follows:

    45. In the light of the many deficiencies in the evidence of the applicant I consider that none of her claims and evidence should be accepted. As discussed above, I consider that she has failed to provide credible elaboration of her claims when asked to do so. Her claims have not been supported by documentary evidence, such as medical reports, when in my view it would be reasonable to expect such reports to be available, if her claims were true. In my view the applicant has demonstrated herself to be willing to provide incorrect, incomplete or false information in relation to visa applications - for example, in relation to her beauty salon and in the medical examination conducted for the purpose of the protection visa application. I consider that the applicant has provided a false document, the purported GD entry, in support of her application, and consider that this reflects extremely poorly on her overall credibility.

    46. In these circumstances, I do not accept that the applicant has provided a truthful account of her reasons for leaving Bangladesh, or for not wanting to return. I am not satisfied that she is at risk of any kind of harm in that country, for the reasons claimed. While she has made general references to the prevalence of violence against women in Bangladesh, she has not provided credible or persuasive evidence to suggest that there is a real chance or risk that she faces harm directed at her as a woman other than the specific violence she claims to fear from Mr [H]. I am not satisfied, on the basis of the information provided by the applicant, that she faces persecution or significant harm in Bangladesh, simply because she is a woman.

Grounds of Review

1. The applicant relies upon two substantive grounds in the amended application, in the following terms:

   1. The Tribunal breached s 499(2A) of the Act and/or failed to take into account a relevant consideration by failing to consider DFAT country information as required by Direction No. 56.

   Particulars

   In particular the Tribunal failed to have regard to the following DFAT country information, which was relevant to the decision:

   a. That local NGOs reported 31 acid attached against women in 2013, often related to a refusal to accept a marriage proposal;

   b. That women living in poverty are vulnerable to sexual crime.

   2. The Tribunal erred by concluding that it had no jurisdiction in respect of the third applicant and thereby failed to complete its statutory task.

Ground One

1. With respect to ground one, the applicant complains that the Tribunal Member had failed to discuss reports by non-government organisations that were mentioned in a DFAT country information report (a copy of which is annexed to an affidavit of the applicant’s solicitor in these proceedings), wherein 31 acid attacks against women were reported in 2013 which were said to be often related to a refusal to accept a marriage proposal, and more general comments that women living in poverty are vulnerable to sexual crime. It is argued that this material would have corroborated the applicant’s claims before the Tribunal with respect to the conduct of Mr H and that the Tribunal was obliged to specifically consider it as a result of the operation of Ministerial Direction number 56, made under s.499 of the Migration Act 1958. 

2. The operation of this direction has been considered by Perram J in SZTMD v Minister for Immigration and Border Protection [2015] FCA 150 where his Honour said at [15]:

   15. It has been held that the effect of s 430(1) is that the Court is entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] (‘Yusuf’). Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision.

3. It appears to me that it is necessary to read the decision of the Tribunal as a whole, in the context of the particular case, in order to make a determination as to whether or not the Tribunal either overlooked the material or failed to have regard to it (if it were relevant in the decision-making process).  One must not overlook the reality that reasons will not refer to every piece of evidence.

4. It does not appear to me that the nature of the applicant’s claim of an assault and a threat of acid being thrown over her is of itself inherently implausible.  If there were any doubts in that regard, the country information confirms that it would be a plausible version of events with respect to a threat.  The Tribunal, however, at no point suggested that the claims given by the applicant were inherently implausible; rather, the focus of the Tribunal’s assessment was the applicant’s credibility, in order to determine whether in fact a threat had been made as alleged or whether in fact an assault had been carried out has alleged.  Indeed, the Tribunal identified at [24]:

   … Overall, I consider that her evidence was problematic in ways which I do not accept can be explained by the nature of her claims, or any particular difficulty which she may have had in putting them forward.  Having regard to her overall circumstances, I have serious concerns about the overall credibility of the applicant and I do not consider that she has provided a truthful or believable account of her reasons for leaving Bangladesh or for not wishing to return.  I consider that the first-named applicant has demonstrated herself to be willing to say anything that she thought would assist her to obtain a desired outcome.  I consider that her evidence is, at best unreliable, and at times, fabricated. Overall, I find that her entire account is lacking in credibility.

5. When reading the material as a whole and the particular factors that the Tribunal Member relied upon to conclude that they did not accept the applicant as a credible witness, and reject her version of events, it does not seem to me that the material contained in the DFAT information bore any real significance upon that decision.  Had the Tribunal expressed some doubt as to the version of events, on the basis that it was an incredible story or an unlikely version of events due to the inherent nature of the allegations, then the DFAT information may have had some relevance at that point.  There is no question that if the Tribunal had concluded that the applicant had been the subject of threats of acid being thrown upon her, that the DFAT information would then have been important in assessing the extent of the risk to her as a result of that threat (in the sense that in countries where such attacks are more common the threat may create a greater risk to a person threatened when objectively assessed than in countries where attacks are less frequent, although, generally, the specific circumstances of the threat will be the more significant evidence in assessing the risk involved). 

1. In this case, the applicant’s case fell at the first hurdle, in that her credibility was so poor that the Tribunal Member did not accept that the threats were made at all.  In these circumstances, there was no need to go on to consider whether or not those threats presented a real risk of serious harm to her. 

2. To the extent it is argued that the claim should also have been dealt with on the basis of a generalised claim that effectively, women living in Bangladesh are at real risk of serious harm because of the circumstances of the country generally, it seems to me that such a claim is of such a great level of generality that it was appropriately dealt with by the comments of the Tribunal at paragraph [46] of their reasons.

3. In these circumstances, I am not persuaded that the failure of the Tribunal to specifically refer to the DFAT information shows either that the Tribunal did not have any regard to it as required under Direction Number 56 – nor am I satisfied that it was of sufficient relevance that one would expect it to be specifically referred to in the reasons in the context of the particular find-finding involved in this decision.  I therefore find that this ground is not made out.

Ground Two

1. With respect to the second ground, there is a technical argument about the operation of the provisions of the Act.  The sequence of events with respect to the birth and notification of the Minister is important to understand this case. 

   (1)The application for a protection visa was pending before the delegate. 

   (2)The child was born on 29 April 2014. 

   (3)As a result of reg.2.08(1) to the Migration Regulations 1994, the child is deemed to have made an application for the same visa type.  (It is an interesting provision in that the effect of it appears to be that even though the Minister at this point is completely unaware of the existence of the child, there is nonetheless a visa application then pending before the Minister and it is taken to be combined with the mother’s application). 

   (4)Unfortunately, the mother did not notify the Minister prior to the delegate making a decision. 

   (5)The delegate therefore determined the application of the mother and father on 2 May 2014, that determination being adverse to them.  At this point, the Minister was still unaware of the existence of the third applicant. 

   (6)Some weeks later, on 22 May, the Minister was notified of the existence of the third applicant and received a notice for review by the Tribunal with respect to the first and second applicants. 

   (7)A delegate determined not to grant a visa to the third application on 16 July 2014.

2. This presents somewhat of a conundrum, in that the delegate has only determined the claims of the first and second applicants at this point and not the claim of the third applicant, even though the provisions deem the third applicant to have applied and have had an application combined with the other two applicants. For the Minister to discharge their duties under s.65 of the Act, the Minister (or a delegate) makes a decision with respect to the application. The fact that the claim may have been deemed to be combined with the first two applicants’ does not relieve the Minister of that obligation to specifically make a decision with respect to the deemed visa application of the child. The Minister proceeded to make a decision under s.65, by way of a delegate’s decision on 16 July 2014. No subsequent application was made to review that particular visa decision by the Refugee Review Tribunal.

3. It is argued by the applicants that the effect of reg.4.31A is to make the Refugee Review Tribunal application that was filed by the parents on 22 May also an application in respect of the child, even though the delegate’s decision was not made until 16 July 2014. 

4. Regulation 4.31A provides as follows:

   If:

   (a)  2 or more applicants have combined their primary applications for a protection visa in a way permitted by Schedule 1 or regulation 2.08, 2.08A or 2.08B; and

   (b)  the Minister’s decisions in respect of 2 or more of those applicants are that protection visas not be granted; and

   (c)  the Minister’s decisions are Part 7‑reviewable decisions;

   the applicants referred to in paragraph (b) may combine their applications for review by the Tribunal of the Minister’s decisions.

5. The regulation is permissive, not mandatory, in that the applications for review may be combined but are not necessarily combined. In this case, there was no decision by a delegate with respect to the child that could be the subject of an RRT review, as contemplated in s.412(2) of the Act, at the relevant time. In the circumstances, the review application made on 22 May could not have been with respect to a delegate’s decision relating to the child.

6. Any review application by the child needed to be lodged after the delegate’s decision on 16 July. 

7. Thereafter, the question would arise as to whether it ought to be combined with the review application by the parents so that all applications could be heard together or not.  However, that does not arise on the facts of this case. 

8. In the circumstances, I am persuaded that the third applicant (the child) did not have a valid review application pending before the Tribunal.  Therefore there is no error in the Tribunal not deciding an application but the third applicant (the child).  In this respect, the Tribunal were correct to conclude that they did not have jurisdiction with respect to the child, as they did at paragraph [49] of the decision.

9. Even if I were to be wrong with respect to this ground, in substance, it is futile to refer the matter back to the Tribunal with respect to the child.  This is not a case where the child has any independent ground upon which to seek a protection visa, from Australia.  The child’s protection visa entitlements flow entirely from the proposition that the mother claimed a protection visa.  Had the mother received a protection visa, the child, as a member of her family unit, would also have received a protection visa.  The mother not having received a protection visa, there is not a “family member” basis for a protection visa for the child.  The risks all rely upon the mother’s evidence which was rejected.  There is not, on the material, any independent claim by the child with respect to serious harm.  In these circumstances, I would have exercised the discretion not to grant relief in any event. 

10. In the circumstances of this case, I therefore dismiss the application. 

    [Further argument ensued]

11. Costs ordinarily follow the event.  There is no reason that they ought not to follow the event in this case.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 24 April 2017