BDI15 v Minister for Immigration

[2016] FCCA 2116

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDI15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2116

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider the consequence of the applicant’s inter-caste marriage within the meaning of s.91R(1)(b) of the Migration Act 1958 (Cth) – whether the Tribunal ought to have considered the time period in which the applicant had resided outside of Nepal gave rise to the risk of serious harm within s.91R(1)(b) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), sub-ss.91R(1)(b), 91R(2)

Cases cited:

Re Minister for Immigration & Multicultural Affairs; ex parte applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30

Applicant: BDI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1728 of 2015

Judgment of: Judge Smith

Hearing date: 15 August 2016

Date of Last Submission: 15 August 2016

Delivered at: Sydney

Delivered on: 19 August 2016

REPRESENTATION

Counsel for the Applicant: Mr J R Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the First Respondent: Mr M Cleary

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1728 of 2015

BDI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Nepal who arrived in Australia on 31 October 2008 and applied for a protection visa on 13 August 2013.

2. The applicant claimed that she had been married in Nepal and had a child to that marriage but that she had met another man of a higher caste, married him, and come with him to live in Australia. However, her relationship with her second husband broke down and ended in divorce in December 2014. She claimed that she feared persecution and significant harm upon return to Nepal for having been twice married; divorced; and because of her inter-caste marriage.

3. On 2 May 2014 a delegate of the Minister decided not to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal[1] for review of that decision. On 1 June 2015 the Tribunal affirmed the delegate’s decision.

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

4. The Tribunal accepted that the applicant had entered Australia as a dependent of the man the applicant claimed to be her second husband, that he had applied for a divorce and was granted that in December 2014, and that the applicant would return to Nepal as a divorced woman and or a single woman who had left her husband.

5. However, the Tribunal found that the applicant was not a credible witness and rejected all of her other claims. In particular, it rejected the applicant’s claims that she had been married before her marriage to her second husband (with whom she came to Australia with) and had a child to that marriage. It also rejected her claim of being involved in  an inter-caste marriage with her second husband and as a result feared harm on return to Nepal for that reason.

Consideration

1. The applicant seeks judicial review of the Tribunal’s decision. She does not take issue with the Tribunal’s reasons in so far as they concern the rejection of her claim to have been married prior to the marriage that ended in divorce. There are two grounds in her application, both of which focus on the following paragraph in the Tribunal’s reasons:

   [82]On the basis of what is accepted of the applicant’s circumstances and the independent reports referred to above, the Tribunal is satisfied that divorced women and/or single woman (sic) who have left their husbands, now have both more legal protections and enjoy greater social tolerance than was the case when the applicant was last in Nepal. While the Tribunal accepts that some stigma remains towards them, it does not accept that the applicant, as a divorced woman or a single woman who has left their husband, returning without a partner, faces a real chance of serious harm as contemplated by sections 91R(1)(b) and 91R(2) of the Act.

First ground

1. The essence of the first ground is that the Tribunal ought to have considered whether there might be any consequence of the applicant’s inter-caste marriage that came within the meaning of serious harm in sub-ss.91R(1)(b) and 91R(2) of the Migration Act 1958 (Cth).

2. The immediate difficulty with that ground is that the Tribunal rejected the applicant’s claim based upon her claim of an inter-caste marriage. It rejected both the existence of the inter-caste marriage itself as well as the applicant’s claim to fear harm as a result of such a marriage.

3. At [36] the Tribunal explained that it did not accept as true that the applicant “fears return because of her claim it was an inter-caste marriage.”

4. At [47] the Tribunal considered the applicant’s claims surrounding her second marriage. It noted:

   … despite asking on a number of occasions at the hearing before me why she feared return, she did not mention a fear of return because of her inter-caste marriage … [t]his leads me to find the applicant is not being truthful as to fearing return because she or (sic) was in an inter-caste marriage …

5. At [48] the Tribunal recounted the applicant’s evidence that she had lived openly with the claimed second husband for a number of months in Nepal. The Tribunal concluded that in the absence of any difficulties that she faced in Nepal before she departed for Australia, she was not being truthful in relation to the concerns about an inter-caste marriage and so doubted that the applicant was ever in an inter-caste marriage or that she feared return to Nepal because of it.

6. At [50] the Tribunal said:

   For the reasons above the Tribunal does not accept that the applicant feared or fears return from the society, her family, her first or second husband’s family as to her claims she was in an inter-caste marriage. The concerns above lead it to doubt she was ever in an inter-caste marriage.

7. At [62] the Tribunal said:

   Based on the findings of credibility it does not accept she fears return from anyone regarding her claim she was in an inter-caster marriage. Based on the applicant’s lack of credibility the Tribunal cannot be satisfied on the evidence before it that she is truthful as to her claims she was in an inter-caster marriage.

   (Errors in original)

8. At [64] and [67] the Tribunal repeated its finding that it did not accept that the applicant was involved in an inter-caste marriage.

9. At [71] the Tribunal stated that it was not satisfied that the applicant faced a real chance of persecution involving serious harm were she to return to Nepal now or in the reasonably foreseeable future on the basis that she was, amongst other things, in an inter-caste marriage.

10. These passages reveal that the Tribunal had considered the applicant’s claim to have been in an inter-caste marriage and to have feared persecution for that reason. In the face of those passages, the applicant argued that the rejection of the claim was illogical and capricious because the Tribunal had accepted that the applicant had in fact been married. Counsel for the applicant argued that it was not open to the Tribunal to use general credibility findings to cherry pick claims in order to reject them. He argued that unless the Tribunal rejected all of the applicant’s evidence then it must examine each aspect of an applicant’s evidence before it is entitled to reject it.

11. Even if the last of these submissions were correct, the Tribunal did not fall into the error asserted by the applicant. It examined the applicant’s evidence concerning the inter-caste nature of her marriage and, in addition to its general concerns about the applicant’s credibility, gave two distinct reasons as to why it did not accept those claims. First, when asked why she feared return the applicant did not mention her inter-caste marriage (see [47]); and secondly, the applicant had lived openly and unharmed with this man for a number of months in Nepal (see [48]). The applicant attacked the first of these bases saying that the applicant’s failure to mention a fear of harm as a result of the inter-caste marriage at the hearing could not be taken to support a finding that there was no fear of harm. I reject that argument. In circumstances where a direct question is asked about the applicant’s fears it is logical to infer that something not mentioned is not feared.

12. In any event, even if there were some error in the conclusion that the applicant did not fear harm on the basis of an inter-caste marriage (which there was not) it would not have been material because the Tribunal rejected the underlying factual basis, namely, the existence of an inter-caste marriage.

13. Further, the whole of the applicant’s argument is fundamentally misconceived. It is not the case that simply because a Tribunal of fact accepts some of a witness’ or claimant’s evidence that it cannot reject any other aspect of his or her evidence on the basis of its concerns about credibility. The applicant sought to present the issue of credibility in black-and-white terms, namely, that either the well is poisoned or it is not (cf. Re Minister for Immigration & Multicultural Affairs; ex parte applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [49] (McHugh and Gummow JJ). There is neither any authority nor logical basis for that proposition. The Tribunal’s credit findings in respect of the applicant’s evidence were based upon logical grounds which, with some minor exceptions, were not impugned by the applicant. Those credit findings in turn provided a logical basis for the Tribunal’s rejection of the applicant’s evidence concerning the nature of her marriage even if he had accepted the existence of the marriage itself.

14. The first ground is rejected.

Second ground

1. The second ground is that the Tribunal ought to have considered the possibility that the fact that the applicant had been outside of Nepal for over seven years might have given rise to the risk of serious harm as contemplated by sub-ss.91R(1)(b) and 91R(2) of the Act. The applicant accepted that she had not made that claim herself; however, argued that that was unnecessary and that the Tribunal had identified that as a possible basis for a fear of persecution. That submission was based upon the following statement in the Tribunal’s reasons:

   [74]The Tribunal notes that the applicant has been living outside Nepal for over 7 years and that she may have some concerns regarding the hardships faced by divorced or single women in Nepal.

2. This ground is based upon a misreading of the Tribunal’s reasons. The remaining parts of [74] of the Tribunal’s reasons show that what the Tribunal was referring to in the passage extracted immediately above was the fact that, when the applicant herself was in Nepal circumstances for divorced or single women might have been sufficiently serious to cause to fear harm; however, that those circumstances had changed in the meantime. That paragraph continued :

   …

   It however notes that her sister lives alone in Pokhara and she did not indicate she faced any difficulties, other than being sick of looking after her child. Independent sources report positive changes in Nepal for divorced women.

   …

3. This understanding of the Tribunal’s reasons is confirmed in [82]. The Tribunal says that it was

   … satisfied that divorced woman (sic) and/or single women who have left their husbands, now have both more legal protections and enjoy greater social tolerance than was the case when the applicant was last in Nepal.

   …

   (Emphasis added).

4. For those reasons, the applicant was incorrect to argue that the Tribunal had identified the applicant’s long absence from Australia as a basis, of itself, or even in commendation with other matters, for any fear of persecution or significant harm if she were to return to Nepal.

5. The second ground is rejected.

Conclusion

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

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 19 August 2016