BCL17 v Minister for Immigration
[2020] FCCA 1670
•25 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCL17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1670 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (Tribunal) – whether the decision was made in good faith – whether the decision was made on assumption instead of fact– whether the Tribunal failed to consider a claim – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: SBAP v Refugee Review Tribunal [2002] FCA 590 SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102; (2003) 77 ALD 23 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 Randhawa v Minister for Immigration, Local Government &Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 64 FCR 151; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593; (2003) 75 ALR 630; (2003) 75 ALD 630 |
| Applicant: | BCL17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 769 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 16 June 2020 |
| Date of Last Submission: | 16 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2020 |
REPRESENTATION
| Applicant: | In Person |
| Representative for the Respondents: | Ms Sangha |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application made on 15 March 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 769 of 2017
| BCL17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 15 March 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a protection visa (“the visa”).
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB” – “RE1”).
Background
The applicant is a citizen of Nepal (item 21 CB 11). She arrived in Australia in July 2009 as a dependent of a person she said was her husband, who came to Australia on a student visa (CB 11 and [1] at CB 173). The applicant subsequently applied for a student visa in her own right, which was refused. This was affirmed on merits review ([1] at CB 173). On 14 August 2014 her application for the protection visa was received by the Minister’s department (CB 1–CB 68). Attached to the application was a statement of claims dated 12 August 2014 (CB 22–CB 24).
The applicant claimed to have suffered domestic violence from her former husband which caused her to feel “unsafe” ([34] at CB 24). She had not returned to Nepal since 2009, as her former in-laws threatened that she would be killed if she returned ([35] at CB 24). She was mistreated by them in the past, including an attempt to poison her ([12]-[15] at CB 128).
The applicant was diagnosed with various medical conditions in 2011, and claimed that she would not be able to receive treatment in Nepal ([30]-[31], [33], [36] at CB 24). Further, the applicant is a member of the Dalit caste which she claimed is “a lower cast[e] in Hindu religion in Nepal.” ([3] at CB 22). She feared returning to Nepal because of the discrimination she had previously experienced because she was from a Dalit family ([37] at CB 24).
The Delegate
The applicant was invited to, and attended, an interview with the delegate on 23 April 2015 (CB 78–CB 81 and CB 85).
On 7 August 2015, the delegate refused to grant the applicant the visa (CB 82–CB 100). The delegate was not satisfied, based on the evidence, that the applicant had suffered domestic violence or that her former in-laws threatened to kill her (CB 89–CB 91). The delegate found that the applicant was a member of a particular social group, being “separated/divorced women in Nepal” (CB 92). However, the delegate did not accept that the fear was well-founded (CB 93–CB 95).
The delegate concluded that the applicant was not owed protection under s.36(2)(a) or s.36(2)(aa) of the Act (CB 96 and CB 99).
Tribunal
On 24 August 2015, the applicant applied for review to the Tribunal (CB 101–CB 111). She was invited to, and attended, a hearing with the Tribunal on 14 February 2017 (CB 117–CB 121 and CB 167–CB 168). The applicant was also invited to provide written submissions to the Tribunal (CB 118).
Prior to the hearing with the Tribunal, the applicant’s representative, a registered migration agent, gave the Tribunal another statement by the applicant, and numerous documents, such as country information and medical documents concerning the applicant’s medical condition (CB 122–CB 131 and CB 139–CB 166).
The Tribunal found that the applicant was not a witness of truth and that her evidence was “confused and inconsistent”, while her explanation for some issues was not “credible” ([25] at CB 177). On the evidence, the Tribunal did not accept that the applicant “…suffers from ongoing cognitive or memory problems.”
Further, the Tribunal found that the applicant made the application for the protection visa as this was her only option to remain in Australia. It did not accept she made the application “…because she genuinely fears harm in Nepal.” ([28] at CB 177–CB 178).
The Tribunal had “serious doubts” that her marriage was genuine and considered “that it [was] likely that it was for the purpose of the applicant obtaining a visa on which to travel to and remain in Australia.” ([26] at CB 177). However, it considered the applicant’s circumstances as if the marriage was genuine ([26] at CB 177).
The Tribunal considered the applicant’s claims concerning her former in-laws at ([35] at CB 180). The Tribunal found that the applicant’s claims concerning the harm she experienced from her former in-laws was inconsistent, and was inconsistent because the claims had been “manufactured.” ([36] at CB 180). The Tribunal also did not accept that the applicant had “experienced serious harm from her former husband or his family” ([42] at CB 182).
The Tribunal did not accept that her former husband’s family had harmed her in the past or that they would harm her in the future ([44] at CB 182).
The Tribunal considered “the applicant’s status as a member of the Dalit caste, and as a divorced woman, as well as her claims that she will have no family support and will have nowhere to live upon her return to Nepal.” ([45] at CB 182). The Tribunal did not accept that any discrimination the applicant suffered because she is a Dalit amounted to serious harm ([47] at CB 183).
The Tribunal “…accepted that the applicant is divorced and that there can be social stigma against divorced women, who can be seen to have contravened family honour.” ([48] at CB 183). The Tribunal however, did not accept that the applicant would not have family support in Nepal ([48] at CB 183–CB 184).
The Tribunal was not satisfied ([49] at CB 184):
“…that the applicant’s circumstances upon her return to Nepal are such that she will suffer significant economic hardship that threatens her capacity to subsist or that she will suffer a denial of a capacity to earn a livelihood or that she will suffer serious harm because she is a divorced woman…The Tribunal is not satisfied that the applicant will suffer ‘serious harm’ of a kind described, but not limited to s.91R(2) of the Act, as a result of her Dalit caste, because she is divorced or as a result of any lack of family support in Nepal.”
In relation to the applicant’s claims concerning her health, the Tribunal noted the evidence cited by the delegate, which indicated that adults can access basic health care for free in Nepal ([51] at CB 184). The Tribunal was not satisfied that:
“…the applicant would be denied medical treatment or appropriate care because she is a Dalit, divorced or for any other Convention reason. The Tribunal is not satisfied, therefore, that any harm that the applicant may experience due to inadequacy of proper medical facilities would be imposed on her for a Convention reason.”
The Tribunal considered the applicant’s claims on a cumulative basis. It took into account that “…there may be some stigma associated with her divorce and previous marriage to someone from a higher caste and there may also be some level of societal discrimination because she is a Dalit.” ([52] at CB 184). However, the Tribunal found that any discrimination or stigma would not amount to serious harm ([52] at CB 184).
The Tribunal was also not satisfied that the applicant would suffer significant harm because of her former husband or his family or because she is a Dalit, or on the “basis of her divorce” ([54]–[55]) at CB 185).
The Tribunal noted that the applicant would be able to access basic health care in Nepal, and in any event, was not satisfied that “difficulties in medical treatment” constituted significant harm ([56] at CB 185).
The Tribunal further found that the applicant’s circumstances considered cumulatively did not indicate that there was a real risk that the applicant would experience significant harm ([56] at CB 186).
The Tribunal concluded that the applicant was not owed protection under s.36(2)(a) or s.36(2)(aa) ([58]–[59] at CB 186). The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
Application to the Court
The grounds of the applicant’s application to the Court are in the following terms:
“1. DECISION WAS NOT MADE IN GOOD FAITH
2. DECISOON WAS MADE BASED ON ASSUMPTION NOT ON FACT
3. TRIVUNAL FAILED TO CONSIDER THE FACT THAT SINGLE WOMEN ARE ABUSED AND THERE IS NO PROTECTION AVAILABLE IN NEPAL”.
[Errors in the Original.]
Before the Court
Orders made on 2 August 2017 provided the applicant with the opportunity to file an amended application, further evidence, and written submissions. The applicant has not filed any such documents.
At the final hearing, the applicant was assisted by an interpreter in the Nepali language. When given the opportunity to make submissions the applicant said she had nothing to say and that “whatever I’ve written and said” was all that she wished to say. In reply to the Minister’s submissions the applicant stated that she had told “them” of what she had “suffered” and “experienced” in the past.
If this was a reference to her claims to protection then this Court cannot intervene to substitute its own findings of fact for those of the Tribunal. If this was a reference to the grounds of the application, then these are addressed below.
Consideration
Ground one asserts that the decision was not made in good faith. No particulars are provided. Nor, as set out above, did the applicant seek to explain this ground before the Court.
The applicant’s ground asserts that the Tribunal’s decision was not made in good faith. Such an allegation, that is, that the Tribunal acted in bad faith, is a serious matter, which is an attack on the very integrity of the decision maker. While there is no exhaustive definition of bad faith, the absence of honesty is a crucial factor (SBAP v Refugee Review Tribunal [2002] FCA 590 at [49], and SBAUv Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076 at [27]).
In that sense this is not only an assertion that the Tribunal failed to bring an open mind to the conduct of the review, but was consciously dishonest in the approach taken. Such an allegation therefore must certainly not be lightly made. It requires that it be “clearly alleged and proved”. (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 (“SBBS”) at [43]).
In the circumstances of the current case all that can be said is that the applicant’s assertion of a lack of good faith, or bad faith, is formulaic, and even at its highest, is no more than an emphatic disagreement with the conclusion reached by the Tribunal member. The applicant made no attempt before the Court to explain this assertion. The allegation must be rejected. The ground as stated is not made out.
The Minister submitted that the complaint that the Tribunal did not act in good faith may be an attempt to assert actual bias on the part of the Tribunal. (Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 at [10]). This also is a serious charge to make against an administrative decision maker, given that unlike other assertions of legal error, bias is also an attack on the integrity of the decision maker.
It is well established that such claims should not be made lightly. Such an allegation must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69]). Nor can bias be made out simply with reference to the decision record in the absence of evidence (VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 at [21]).
In the circumstances, given that the Tribunal complied with the relevant statutory requirements in that it gave the applicant a meaningful opportunity to explain her case, its decision was reasoned, and contained findings reasonably open to it on the evidence, no indication of bias is evident.
Nor for that matter is there anything to indicate that the fair-minded, well-informed lay observer might reasonably apprehend that the Tribunal might not have brought an open mind to the proceedings (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, 434–435, and [27]–[32]).
Ground two, again, is a mere assertion that the Tribunal’s decision was based on assumption and not fact. No particulars or explanation have been provided.
On the evidence before the Court, the Tribunal considered all of the applicant’s claims to fear harm. It made findings of fact reasonably open to it on what was before it and for which it gave cogent reasons.
In the circumstances it would appear that the complaint is directed to the Tribunal’s significant concerns (for example – “serious doubts” – [26] at CB 177) with the credibility of the applicant’s claims and the ultimate conclusion that the applicant did not satisfy the criteria for the grant of the visa.
As the Minister submits, the Tribunal is under no legal obligation to accept anything or everything that an applicant claims merely because the applicant has claimed it (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437, Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559, 596 (Kirby J) and AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [24]).
The Tribunal’s adverse credibility findings were not based on “assumptions”. Rather, the Tribunal identified inconsistencies in the applicant’s claims and her evidence. It found that her explanations for these were not credible. The Tribunal also noted that ([25] at CB 177):
“…during the hearing at times the applicant sought to recite her statement in response to unrelated questions from the Tribunal, whilst at other times she was vague and evasive and the Tribunal formed the impression that she was attempting to recall her claims made in her statement, rather than speaking from her own experiences.”
The Tribunal’s findings were all probative of the material before it and were cogently and logically explained. What remains is that ground two, in the circumstances, does not rise above an expression of disagreement with the Tribunal’s decision, and therefore seeks impermissible merits review.
I note for the sake of completeness, that although the Tribunal considered that there were “…several other factors…indicative of the fact that the applicant’s claims are fabricated” ([29] at CB 178), and had “serious doubts” that her marriage was genuine, it nonetheless considered the applicant’s claim as if the marriage was genuine ([26] at CB 177).
Ground three asserts that the Tribunal failed to consider that single women in Nepal are abused and there is no protection available to them.
I agree with the Minister that, on the evidence, there is nothing to indicate that the applicant expressly claimed that as a single woman she would be abused in Nepal, or that such a claim clearly arose on the materials before the Tribunal.
The Tribunal is required to consider a claim to fear harm that is made to it or clearly arising from the circumstances before it (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184).
I note for the sake of completeness, that the Tribunal did consider all of the applicant’s claims as expressly made or clearly arising from what was before it.
That is, that the applicant feared harm and discrimination because she was from the Dalit caste, feared harm from her former husband’s family, including because she was a Dalit, and that they did not want her to access their property, that she had a medical condition for which she would not be able to obtain treatment in Nepal, and that she would be forced into prostitution if she were to return. There is nothing to indicate that the Tribunal failed to consider any of these claims in the requisite sense.
Further, the Tribunal accepted that the applicant was a member of the Dalit caste, and considered her circumstances if she were to return as a divorced woman ([47]–[48] at CB 183–CB 184). However, the Tribunal found based on its consideration of all of the applicant’s circumstances, including her family support, her education, and country information available to it, and in light of its findings as to the credibility of some of her claims, that she would not suffer serious or significant harm for these reasons on return. This was reasonably open to the Tribunal on what was before it and for which it gave cogent and intelligible reasons. Ground three is not made out.
Conclusion
The grounds of the application do not reveal jurisdictional error in the Tribunal’s decision. Nor can I otherwise see that such error is apparent in the Tribunal’s decision. It is appropriate to dismiss the application to the Court. I will make that order.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 25 June 2020
0