BGB17 v Minister for Immigration

[2017] FCCA 2683

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGB17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2683

Catchwords:
MIGRATION – Administrative Appeals Tribunal – the Tribunal made no jurisdictional error in failing to address a claim that did not arise – application for a Protection visa – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 476

Applicant: BGB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 873 of 2017

Judgment of: Judge Street

Hearing date: 2 November 2017

Date of Last Submission: 2 November 2017

Delivered at: Sydney

Delivered on: 2 November 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 873 of 2017

BGB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 February 2017 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Nepal and her claims were assessed against that country. The applicant arrived in Australia on 17 December 2012 as the dependent of her then husband, who was the holder of a Student visa subclass TU-572. That visa ceased on 1 May 2014. It was not until 24 April 2014 that the applicant lodged an application for protection.

3. The applicant alleged that her then husband’s family did not welcome her and harassed her because they were an upper class family and she was from a lower class. The applicant alleged that her brother-in-law attempted to rape her. The applicant alleged that the former husband verbally, physically and psychologically abused the applicant from the start of their marriage and continued to abuse the applicant while she was with him in Australia. The applicant alleged she was assaulted on 28 August 2013 with her then husband threatening to kill her. The applicant alleged she was also assaulted on 27 March 2014 and after this she left home and lived with a friend.

4. The applicant alleged that her husband sent members of the Chaudhury community to abuse her and the applicant reported the domestic violence to the police. The applicant alleged that as a result of the police report, the former husband and his family threatened the applicant’s family and demanded the charges be dropped. The applicant alleged that the former husband continued to regularly threaten the applicant’s parents and threatened to kill her, her mother and her siblings.

5. The applicant then divorced the husband and feared harm because as a divorcee, she would not be welcomed into the Nepalese community.  The applicant alleged that her parents would not accept her and her siblings would suffer because of her divorce.  The applicant alleged that she would be forced to commit suicide because of social pressure on her and believed that the former husband’s parents were influential and would kill the applicant for their honour. The applicant also feared that she would be unable to support herself economically in Nepal and her family were unable to support her.

6. The delegate made adverse credibility findings in relation to the applicant’s claims that her former husband and his family threatened to kill her and made adverse findings in relation to the alleged domestic violence on 31 March 2014. The delegate identified that the applicant had worked as a primary teacher in Nepal until she left for Australia and that her father had supported her during her studies.  The delegate found the applicant failed to meet the criteria for the grant of a visa under the Act.

The Tribunal’s decision

1. On 1 April 2015 the applicant applied to the Tribunal for review. On 27 October 2016, the applicant was sent a letter inviting the applicant to appear at a hearing on 15 December 2016. The applicant appeared on that date to give evidence and present arguments and was represented at the hearing and in the review by her migration agent.  The Tribunal identified the background to the applicant’s application for review. The Tribunal summarised the applicant’s claims and the submissions advanced on behalf of the applicant, including a report from a consultant psychiatrist dated 18 December 2014 which summarised the impact of the alleged domestic violence upon the applicant and the applicant having an adjustment disorder and being depressed and anxious mood, and referring to the doctor’s opinion that the applicant may need to stay in Australia due to the danger of retaliation if she were to return to Nepal.

2. The Tribunal summarised what occurred at the hearing and raising with the applicant issues in respect of the applicant’s credibility. The Tribunal noted that at the hearing the applicant raised claims regarding an inter‑caste marriage and referred to the applicant’s evidence that contradicted what had previously been provided by the applicant regarding poor treatment by her husband’s family. The Tribunal made clear to the applicant it was having difficulty accepting the applicant’s evidence as it appeared to be changing.

3. The Tribunal identified exploring the alleged threats made to the applicant and her family. The Tribunal raised with the applicant the difficulty with her claims in light of the applicant’s evidence that her mother continued to live in the village alone while her brother and sister lived with the uncle and her father worked overseas. The Tribunal accepted that the applicant had a genuine relationship with her former husband and that there was domestic violence within the relationship. The Tribunal explained to the applicant it must consider a forward-thinking test and that it had difficulty accepting the applicant’s claim to fear harm in the future.

4. The Tribunal identified that the contradictions in the applicant’s evidence raised doubts in relation to the specific evidence and in relation to the applicant’s evidence more generally. The Tribunal made reference to the applicant at the end of the hearing, identifying that her ex-husband is scared to cause her harm whilst in Australia as he is afraid of the police and the law, but that he would have that opportunity to harm her if she returned to Nepal.

Assessment of Refugee Convention criteria

1. In relation to the applicant’s claimed fear as a result of an inter-caste marriage and inter-class marriage, the Tribunal found the applicant’s overall evidence lacked credibility. The Tribunal, having considered the applicant’s claims regarding inter-caste marriage and inter-class marriage, as well as the applicant’s evidence in relation to an arranged marriage, did not accept the applicant had an inter-caste and/or inter-class marriage and did not accept the claims to fear harm flowing from that.

2. The Tribunal accepted that some threats had been made in the past.  The Tribunal took into account the applicant’s evidence that she has not seen her former husband for over two and a half years and that she is unaware of his whereabouts and that she does not have ongoing contact with him. The Tribunal took into account the applicant’s Apprehended Violence Order had ceased to be in effect, that the applicant appeared to be unaware of any charges or convictions against her husband in relation to domestic violence. The Tribunal found that although the applicant’s fear may be genuine, the Tribunal was not satisfied that she receives threats currently and/or that she will be threatened upon return to Nepal.

3. The Tribunal identified credibility concerns in relation to the applicant’s claims that her extended family had been threatened in Nepal. The Tribunal identified the living arrangements in relation to her extended family and the evidence in relation to her mother continuing to live alone in the village. The Tribunal found the applicant’s mother’s actions indicate that she does not feel under threat and found that this did not support a finding that the applicant’s family had been threatened.  The Tribunal found when the applicant was asked to provide specific details in relation to the family being threatened, the applicant only provided broad and general claims.

4. The Tribunal also identified the applicant giving contradictory evidence when the Tribunal sought to explore with the applicant whether or not her family had reported threats to the police. The Tribunal referred to the inconsistency in relation to the applicant’s submissions alleging that her in-laws and her husband’s extended family treated her poorly in comparison to the evidence the applicant gave that the in-laws were good to her to her face, but rude behind her back. The Tribunal was not satisfied the applicant’s family had been threatened as claimed. The Tribunal accepted that there may have been some contact and heated discussions between the families at the time of separation. The Tribunal did not accept that there had been ongoing threats made against the applicant and/or her family in Nepal or that that would occur in the future. 

5. The Tribunal made reference to the applicant’s fears by reason of being a separated and divorced or single woman in Nepal. Whilst accepting that certain categories of women may face difficulties upon return, the Tribunal was not satisfied this would be the case for the applicant. The Tribunal took into account that she does not have any children, nor does she have any ongoing caring responsibility that could impact on her ability to obtain paid employment. The Tribunal also found the applicant was relatively well-educated and that she has employment experience also in Australia.

6. The Tribunal made reference to the applicant’s claims that she would not be supported by her family and that her father had rejected her and the Tribunal did not accept this evidence due to the contradictions in the applicant’s broader evidence. The Tribunal took into account the ongoing contact the applicant had with her mother and occasional contact with her brother and sister. The Tribunal found the applicant would be able to return to Nepal and live with her family or, if she preferred, live independently and that the applicant would be able to financially support herself.

7. The Tribunal made observations in relation to the credibility concerns in respect of the applicant and her failure to directly answer questions and her unrelated responses. The Tribunal made express reference to taking into account the consultant psychiatrist’s report in relation to the danger of retaliation were she to return to Nepal. Having considered the evidence, the Tribunal was not satisfied that this is the case that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) of the Act. 

Assessment of Complementary Protection criteria

1. The Tribunal did not accept that the applicant is at risk of harm in the future. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. On 6 July 2017 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant did file a further affidavit which in substance repeated the applicant’s claims and reflected a disagreement with the Tribunal’s adverse findings. The adverse findings by the Tribunal in relation to the applicant’s claims and evidence were open on the material before the Tribunal for the reasons given by the Tribunal. Those adverse findings cannot be said to lack an evident and intelligible justification. Nothing said in the affidavit identified any jurisdictional error by the Tribunal.

2. The grounds in the application are as follows:

   1. The Tribunal failed to engage in active intellectual process in assessing the applicant's claim.

   Particulars:

   a. The Tribunal noted that it has considered the alternative criterion in s.36(2)(aa), however it failed to assess whether the applicant would face degrading, inhuman and cruel treatment due to her mental health issues.

   b. The Tribunal failed to assess the whether the applicant would face either real chance or a real risk of economic persecution based on her particular circumstances and mental health issues.

   2. The Tribunal failed to comply with the requirements of section 424A or 424AA of the Migration Act 1958 in conducting its review of the case.

   Particulars:

   a. The Tribunal's decision was based wholly or in part on information which the Applicant had provided to the Minister's delegate orally. That information was not exempt from the requirements of s424A but the Tribunal failed to comply with either s424A or 424AA in respect of that information.

   b. The Tribunal failed to put information to the applicant under Section 424A or 424AA regarding the evidence of her witness.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review.  The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court. 

The applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that she had been the subject of mental illness and when referred to the psychiatrist’s report, suggested that there was another doctor’s report. The Court book does not disclose any other doctor’s report and the psychiatrist’s report was clearly taken into account by the Tribunal.

2. Insofar as the applicant was seeking to advance ground 1 of the application that she made a claim to fear harm due to her mental health issues, no such claim was made on the material before the Tribunal and no such claim fairly arose on the material before the Tribunal. The Tribunal made no jurisdictional error in failing to address a claim that did not arise.

3. The Court has taken into account that the applicant was represented in the course of the review before the Tribunal. It is clear from the doctor’s report in the passages already referred to, that that was relied upon in support of the applicant’s claimed fear of retaliation from her husband or husband’s family. The applicant maintained that her family was under threat. That submission reflects a disagreement with the adverse findings by the Tribunal and does not identify any jurisdictional error. 

4. The applicant took issue with her ability to subsist in Nepal. The Tribunal took into account the applicant’s claim and made adverse findings in that regard that were open. In substance, the applicant’s submissions from the bar table invited the Court to engage in an impermissible merits review. This Court does not have power to revisit the merits. This Court does not have power to decide the matter on compassionate grounds. Nothing said by the applicant from the bar table identified any jurisdictional error.

Ground 1

1. In relation to ground 1, for the reasons already given, no claim to fear harm by reason of the applicant’s mental health issues was advanced before the Tribunal and no such claim fairly arose on the material before the Tribunal and accordingly, no jurisdictional error is made out in that regard. 

2. In relation to the applicant’s concerns in respect of her capacity to subsist, the Tribunal made adverse findings in relation to the applicant’s claims that were open on the material. There is no substance in the proposition that the Tribunal failed to address the applicant’s claims as advanced before the Tribunal and there is no substance in the proposition that the Tribunal failed to properly apply the relevant test in relation to complementary protection. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, no information is identified enlivening any obligation under s 424A of the Act. It was not necessary for the Tribunal to raise with the applicant its reasoning in respect of adverse credibility findings. It is apparent from the material before the Court that the applicant’s credibility was an issue before the delegate and it is also apparent on the material before the Court, and in particular the Tribunal’s reasons, that the applicant’s credibility was raised in the course of the hearing. No jurisdictional error as alleged in ground 2 is made out.

Conclusion

1. For the reasons earlier given, the applicant’s disagreement with the adverse findings referred to in the applicant’s second affidavit does not identify any jurisdictional error and in substance invites the Court to engage in an impermissible merits review.

2. As no jurisdictional error is made out by the application, the application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 November 2017