BIM15 v Minister for Immigration

[2016] FCCA 375

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIM15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 375

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a Protection Visa – no arguable case of jurisdictional error – no error disclosed in tribunal’s reasons – strong credibility findings against the applicants.

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Citizenship v You [2008] FCA 241
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407

Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12

SZUZY v Minister for Immigration & Anor [2015] FCCA 502
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

First Applicant: BIM15

Second Applicant: BIN15

Third Applicant: BIO15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 640 of 2015

Judgment of: Judge Willis

Hearing date: 12 February 2016

Date of Last Submission: 12 February 2016

Delivered at: Cairns

Delivered on: 24 February 2016

REPRESENTATION

The First Applicant appearing on own behalf

The Second Applicant appearing on own behalf

Solicitor for the First Respondent Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The Application filed 10 July 2015 is dismissed.

2. The Applicant is to pay the first respondent’s costs fixed in the sum of $5, 800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

BRG 640 of 2015

BIM15

First Applicant

BIN15

Second Applicant

BIO15

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a draft decision in the matter of BIM15, applicant, and BIN15, second applicant, and BIO15 as the third applicant v Minister for Immigration and Border Protection, first respondent, and Administrative Appeals Tribunal, second respondent.

2. By application filed in this court on 10 July 2015, the applicant seeks a judicial review of a decision of the second respondent (the tribunal) dated 11 June 2015, whereby the tribunal affirmed a decision of a delegate of the first respondent dated 6 August 2014 not to grant the applicants’ protection (class XA) visas (the visa).  The first respondent opposes the application.  The second respondent submits to the outcome in the proceedings.

The Applicant’s claims before the Tribunal

1. The decision of the tribunal reveals that the first applicant (the applicant) is a citizen of India who first arrived in Australia on 11 August 2008 as the holder of a student visa.  The applicant travelled to Australia for the purposes of undertaking her master’s in Information Technology. On 12 November 2013, the applicant lodged an application for the visa.  The applicant’s husband (the second applicant) and her son (the third applicant) applied for the visa as members of the family unit. 

2. The applicant claimed in her application for the visa that she was in fear of harm by both her own family and the family of her husband because she had borrowed money from them for the purposes of study.  The decision of the tribunal recounts that the applicant, in her original application for the protection visa, claimed:

   “I am worried that, should I go back without the necessary qualifications or the money to pay back our families, they will not welcome us back to the house and family.  If this happens, we will have nowhere to live, as well as no income to support us, as we have been in Australia too long and there is no job waiting for us back home.  BIN15 (the husband) used to work on the family farm before we came to Australia; however, if we return without money or necessary qualifications he will not be allowed to work back on the farm.  We will become destitute ... 

   We believe both my family and BIN15’s family will harm us due to the money we owe them and we are trying to pay back to them ...  We believe that they will be angry because they believe we have wasted their money and are not able to pay them back.  They have rung us and harassed us for the money over the phone.  They want to know why we haven’t paid them back yet, we have told them that we are unable to work at the moment and that, once we are able to, we will pay them back.  They have not been happy with this response. 

   In regards to safety in general, as we previously lived in India, we are all too aware of the events that take place on a daily basis." 

3. The applicant told the tribunal she feared that the family may harm her son as a means of revenge for not paying the loan and that her son did not have the knowledge to protect himself from everyday events which take place in India, including child abduction, rape and theft.[1] 

   [1] Court book (CB) 32.

4. The application for a protection visa was refused by a delegate of the Minister and the applicant sought a review of that decision. On 4 September 2014, the applicants applied for review to the then Refugee Review Tribunal (the tribunal) of both delegate decisions. 

5. The applicants are citizens of India.  BIM15 and her husband, BIN15, were married in India in March 2008 and arrived in Australia on student visas in August 2008.  Their son, BIO15, was born in Australia in 2010.  The applicants lodged protection visa applications on 12 November 2013.  BIM15 was initially identified as the main applicant, with BIN15 and the child BIO15 included as “part D” applicants, meaning that they were lodging no claims of their own and, respectively, reliant on the outcome of BIM15’s application.  A subsequent part C application was lodged on behalf of the child BIO15, in view of his parents claiming that, as an Indian child born in Australia, he had claims of his own.  The Minister’s delegate, in two separate decisions, refused to grant the visas on 6 August 2014. It is noted in the tribunal’s decision that, in view of BIO15 being an infant, his parents have consented to a joint hearing of their applications and the decisions on their respective review applications are presented in this combined decision record.

6. On 4 September 2014, the applicants applied for review of the then Refugee Review Tribunal of both delegate decisions.  The applicants were invited to appear before the tribunal to give evidence and present arguments on 12 May 2015.  The hearing took place in Cairns on 9 June 2015.  The applicants were accompanied at that hearing by their adviser, a registered migration agent.  The tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. At the application today for judicial review, the Court inquired of the applicants as to whether or not she required a translator, noting that the mother had travelled to Australia for postgraduate studies, namely a master’s, and that the applicant advised the Court that she had completed her master’s in English.  The Court inquired if the applicant wished to have a translator and the applicant confirmed that they did not wish to have a translator – that she thought she would understand everything.  The Court indicated to the applicant that, if there was something she did not understand, to indicate that to the Court and a translator could be organised. 

8. It is significant in this matter to note that, according to the passports of BIM15, BIN15 and BIO15, they have all travelled together to Fiji for five days in February 2013, which was described in her protection visa application form as a “holiday”.  It is also recorded in BIM15’s passport that she travelled to India again in the middle of 2013, just a few months after the holiday in Fiji, and stayed in India just over two weeks.  The applicant made a further journey to India in August 2013 for another stay of just over two weeks.  The tribunal’s decision notes that, all in all:

   “BIM15 made three overseas return flights in the months leading up to the protection visa application, in which she claimed she owed money to relatives that she and her husband could not afford to pay.  Two of these flights were to India, the country she claimed she was afraid to re-enter.”

9. The decision notes that, according to information she provided in her protection visa application, the applicant was employed in the agricultural sector for 2011, for half of 2012 and half of 2013. 

10. The decision also includes reference to the adviser’s 12 November 2013 letter covering the applicant’s protection visa application acknowledged on their behalf that their claims did not fall within Convention-related grounds as far as they were concerned.  The adviser conveyed in the letter BIM15’s wish that the matter be put before the Minister under section 417 of the Act on humanitarian grounds.  The applicants attended an interview with the Minister’s delegate on 3 February 2014.  Records of the primary decision in these matters have been submitted to the tribunal for the purposes of this review.  They list claims reportedly made at the hearing and the decision notes that the claims as reported in these two decision records are not in any way disputed by the applicants. 

The tribunal’s findings

1. In the tribunal’s decision of 11 June 2015, the tribunal was not satisfied that the applicant was a truthful and reliable witness and rejected her claims of being harassed and intimidated and likely to be threatened with serious harm by both her own and her husband’s families to be entirely concocted. 

2. The decision states (at paragraph 42):

   “Having considered all of the evidence before me, I make no findings as to whether BIM15 previously borrowed money from various relatives and in-laws or as to whether she still owes them all or any of it.  The issue here is whether she faces a real chance of serious harm for reasons of this loan and the actions or inaction of any of the parties involved.  Overall, I am not satisfied that BIM15 is a truthful and reliable witness in this matter.  I find on the evidence before me that her claims about her husband, son BIO15 and herself being harassed and threatened with serious harm by their respective family members are entirely concocted. 

   In view of BIM15’s overwhelmingly unreliable performance as a witness in relation to this issue, I give no weight to BIN15’s evidence.  As I do not accept that BIM15’s substantive claims about the loan and its lenders are at all credible, I give no weight to the material in the adviser’s submissions.  I specifically give no weight to the letter from Mr X; it does not help in any way to overcome the problems and deficiencies in BIN15’s evidence.  I do not accept on the evidence before me that BIO15 faces a real chance of being kidnapped or ransomed or in any other way seriously harmed in relation to BIM15’s claimed problems with the loan.

   As an overall lack of credibility is the critical issue here, it is not necessary to make a finding as to Convention nexus;  however, for completeness, I find that the claims in this case about the unpaid loans and the relevant agents of persecution, direct and indirect, are not Convention-related claims.  I am not satisfied on the evidence before me that BIM15 faces a real chance of Convention-related persecution in India for any other reason, such as her status as a “woman”, or “educated woman”, or “woman repatriating from abroad”, or “Indian woman who has given birth to a child in Australia”, or any combination of these or other suggested or implied “particular social groups”.”

3. I accept and adopt the written submissions of Ms Tattersall for the first respondent as set out at point 8 as an accurate summary of the tribunal’s findings, as follows:

   In its decision dated 11 June 2015, the tribunal:

   8.1 was not satisfied that the applicant was a truthful and reliable witness and found her claims in respect of being harassed and threatened with serious harm by hers and her husband’s families to be entirely concocted (CB225 [42]).  Informing this view, the tribunal found: 

   (a)she was an unimpressive witness, who appeared repeatedly to avoid answering questions (CB222 [25]);

   (b)her evidence was inconsistent about when the pressure to repay the money began (CB222 [25]);

   (c)her evidence was inconsistent about whether it was her or her husband’s family threatening to repay them (CB222 [26]-[27]);

   (d)her evidence was generally evasive and inconsistent as to what conditions of the loan or loans were agreed to at, or around, the time of lending (CB222 [28]);

   (e)it had difficulty accepting that she had grappled with the debt since 2008 and had been unable to negotiate or commence repaying the debt in light of the air travel and holidays taken by the family (CB223 [29]);

   (f)it was odd that she took her child to live with her in-laws in 2011, given her claims about the pressure and hatred to which she said they had been subjecting her to since they first came to Australia (CB223 [31]);  and

   (g)her evidence was inconsistent in relation to her previous Federal Court Circuit matter and MRT refusal (CB224 [32]-[33]).

4. The tribunal also:

   8.2 found that the claims about the unpaid loan and relevant agents of persecution were not Convention-related claims (CB225 [43]);

   8.3did not accept the applicant faced a real chance of persecution for being a woman or being educated or for being a woman repatriating from abroad or because she gave birth to a child in Australia (CB226 [44]);

   8.4did not accept that the applicant faced a real chance of persecution for reason of her pigmentation condition (CB226 [46]), which the applicant claimed at the tribunal hearing she would face discrimination for (CB224 [38]);

   8.5did not accept that the claimed harm in relation to the third applicant amounted to persecution for a Convention reason (CB226 [48]-[49]);  and

   8.6in relation to the complementary protection criterion, the tribunal relied on its previous finding and found that it was not satisfied that, as a necessary and foreseeable consequence of the applicants’ being removed to India, there is a real risk they will suffer significant harm (CB226 [55]-[57]). 

   Accordingly, the tribunal found that the applicant did not satisfy the criteria in sections 36(2)(a) or (aa) of the Migration Act 1958 (the Act) and the decision under review was affirmed (CB226 [58]).

5. I have thoroughly read the reasons and inconsistencies of evidence as set out in the very comprehensive reasons given by the tribunal.  Clearly a feature of the tribunal’s findings was the lack of credibility and honesty in her testimony of the applicant.

The grounds of review

1. On 12 October 2015, Judge Howard made orders that the applicants file and serve any amended application giving complete particulars of each ground of review relied upon by 9 November 2015.  Orders were also made that the applicants file and serve any affidavit containing additional evidence, including any transcript of a tribunal hearing upon which they proposed to rely, by 9 November 2015 and an order was made that the applicants file and serve written legal submissions 14 days before the hearing.  Despite all of those orders being made, none of the applicants filed any amended application giving further and complete particulars, nor were any written submissions provided to the Court in the timeframe stipulated or at all. 

2. Turning to the grounds for review, the applicant claims, as the first ground of review:

   (1)The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of it being relied upon, and to invite the applicant to comment upon and/or respond to that information.

   Particulars

   The tribunal did not issue any written invitation under section 424A of the Act and made no attempt to, and did not, comply with the requirements set out in section 424A of the Act.

3. Despite given lengthy opportunities to explain to this court the basis of that submission, the applicant could offer no submission at all, even after being shown the respondent’s submissions and being invited to comment on the respondent’s submissions.  I am not satisfied that, in the circumstances of this matter, and noting the basis for the refusal of the visa, there is anything further that the tribunal was required to do to comply with its statutory procedural fairness obligations over and above anything that has already been attended to.  I accept the submission that this ground is not made out. 

4. I note the definition of “information” for the purposes of section 424A and 424AA as submitted by the first respondent does not include the existence of doubts, inconsistencies, or the absence of evidence.  The primary issue in this matter, and the issue of most concern to the tribunal, was the applicant’s credibility, and I do not accept that it was required to give the applicant any further clear particulars of her own inconsistencies.  I have read the tribunal’s decision and am satisfied that, throughout the hearing, the inconsistencies were observed and raised with the applicant at various times throughout the hearing.  There were, in my view, plenty of opportunities for the applicant to understand and respond to the inconsistencies and apparent untruthfulness of her own evidence. 

5. The inconsistencies have been drawn to her attention.  Without repeating them all, I note, for instance, at paragraph 27 the tribunal notes:

   “Later in the hearing, when I put to BIM15 that she had originally claimed to the department that her own parents had been threatening her over the money she had borrowed, she said that her mother had died and her father was helpless.  Here, she appeared to undermine earlier claim about her own parents threatening her and being capable of kidnapping her son.  She then went on to say at the hearing that the threat from within her family came from her brother’s wife, who she said had been torturing her.  When I asked her to give me more details about what this torturing involved, she merely said her sister-in-law had said to her, “Try to return the money.”  From what BIM15 said at the hearing, I find her claims about demands from her own family were grossly exaggerated and unreliable.” 

6. A further example is seen at paragraph 30, which states:

   “BIM15 said she took BIO15 back to India in late 2011 with the intention that he stay with her in-laws for a year.  She said her in-laws had already been giving her trouble about the loan but had not yet begun directly threatening her.  When I asked her why she took her son to stay with the in-laws, given that they had been so hostile to her for so long (as was her previous evidence), she said, “I never thought they’d go that far.”  She said she left her son in India only to find that her in-laws refused to let her speak with him when she telephoned from Australia, having returned there after two months in India.” 

7. The first respondent submits that the tribunal is not required to put to the applicant information in the decision of the delegate, as the decisions were attached to her review application to the tribunal and, therefore, the information is considered to have been given by the applicant to the tribunal so as to enliven the exception in section 424A(3)(b) of the Act.[2] I am not satisfied that there is any jurisdictional error revealed by this ground.

   [2] Minister for Immigration and Citizenship v You [2008] FCA 241 at 16.

8. In the second ground of review, the applicant claims:

   “The tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims.  The tribunal did not consider the applicant, who had been under immense and intimidating pressure from lenders.”

1. In her oral submissions, the applicant submitted that she came to the tribunal for protection of her child and if anything went wrong she didn’t know who is protecting them. 

2. I accept the first respondent’s submission that, in asserting that the tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequence of claims, that the applicant is attempting to invite this court to undertake a merits review based on the applicant’s dissatisfaction with the outcome of the tribunal’s decision.  I am satisfied that it is not this Court’s role to engage in a merits review.[3]

   [3] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

3. In terms of the assertion that the tribunal’s decision did not take into account the full gravity of the applicant’s circumstances, I am satisfied that the tribunal’s decision acknowledged those circumstances at paragraphs 10 to 13, 21 and 25 to 31 of its decision. I am not satisfied, therefore, that the applicant’s claims were ignored or overlooked; moreover, the decision reveals that the tribunal were not satisfied with the reliability of the evidence placed before it and made findings that the claims of threats and violence were without foundation and, further, entirely concocted at paragraph [42].

4. The applicant also states at ground 2 that the tribunal did not take into consideration that she was under immense and intimidating pressure from lenders.  I am satisfied that this was well and truly considered by the tribunal and it is expressly stated in the decision at paragraph [32] where it states that:

   “The applicant said she did not apply because she was too stressed and scared over the pressure she had been receiving from her in‑laws.”

5. There are also further references to her assertion that she was subjected to harassment by the family (at 26 to 28 of the decision).  I am satisfied that the tribunal was well aware of these claims being made by the applicant, as it has been expressly referred to and the evidence about such claims was refuted.  I am satisfied that there is no jurisdictional error revealed in this ground.

6. Ground number 3, the applicant contends that:

   “The tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of her claims were implausible, being conclusions that were not obviously open on the known material, without giving the opportunity to be heard in respect of those matters.”

7. Having read the decision thoroughly, I am satisfied that this ground is, essentially, an objection about the outcome.  The credibility findings and the basis for them are expressly explained throughout the tribunal’s decision.  It is clear to me that there were plenty of opportunities given to the applicants to respond to the questioning or to clarify answers, as can be seen in the decision.  Repeatedly, the tribunal has included in the decision the questions that they asked, and the answers. 

8. At this hearing, the applicant was unable to make any submission to support that ground when given ample opportunity to do so. The applicant simply said words to the effect, “What can I do if somebody has tortured me?” 

9. I accept the submission of the respondent that this ground “essentially cavils with the tribunal’s assessment of the applicant’s credibility”.  A credibility finding is a finding of fact made by the tribunal par excellence.[4]  The tribunal’s decision is replete with very specific examples where the applicant’s credibility has failed, where her evidence is inconsistent, the conclusions about her alleged threat that she was at risk of serious harm by both her own and her husband’s families was entirely without foundation and entirely concocted.  I am satisfied that those findings were open on the evidence before the tribunal and that they cannot be reviewed by this Court. 

   [4] Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67].

10. I also accept the submission that the applicant can be taken to have been aware that her credibility was a relevant issue before the tribunal, given that this was precisely the same issue that was raised before the delegate and which can be seen very thoroughly referred to in the delegate’s decision of 6 August 2014.  In that decision, the applicant was not regarded as a credible witness.  I accept that many inconsistencies have been referred directly in the reasons and taken up with the applicant, as shown in paragraphs 27, 30, 32 and 33.  I am not satisfied that any jurisdictional error has occurred, as alleged in ground 3.

11. Turning to the final ground, that is, the applicant alleges:

    “The tribunal has failed to investigate the applicant’s claim, especially the grounds of persecution in India;  therefore, the tribunal decision dated 11 June 2015 was affected by actual bias constituting judicial error.”

12. When given an opportunity to explain anything that would support this submission, which I note contains a very serious allegation of “actual bias constituting judicial error”, the applicant was not able to assert any example of any kind of bias whatsoever. 

13. I accept the submission of the first respondent that it is not the tribunal’s function to launch into an investigative inquiry on behalf of the applicant.  The purpose of the tribunal, as set out in the statute, is to review the previous decisions.[5]  The tribunal does not have a duty to inquire and it is for the applicant to substantiate or make out their case before the tribunal.[6]  I do not consider that anything about the stories, the allegations put forward by the mother, required the department to launch its own inquiry and I am satisfied, in the circumstances of this matter, that they do not constitute fitting into the rare and exceptional occasion when this may occur.  As I have said, there is simply no particularisation of what inquiry the department also ought to have conducted.

    [5] Migration Act 1958 (Cth), s 414.

    [6] Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12.

14. Finally, turning to the allegation of “actual bias”, which is the second limb of the final ground, it is concerning to note that the applicant could offer no submission in support of that ground and no examples at all.  These sorts of allegations and grounds ought not be raised without proper grounds.  It certainly has never been particularised and there was no attempt to comply with requirements to particularise.  I accept the submissions of the respondent that it would be a rare and exceptional case in which a court would find that a decision-maker had exhibited bias based simply upon a decision-maker’s reasons.[7]  There is no evidence that has been filed about any bias.  I am quite satisfied the allegation has been made vexatiously and entirely without foundation and that no jurisdictional error is revealed by this ground. 

    [7] SZUZY v Minister for Immigration & Anor [2015] FCCA 502 per Judge Smith at [23], at [35] following Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427.

Conclusion

1. I accept that the adverse credibility findings and other factual findings and observations of inconsistencies made by the tribunal were open to the tribunal.  No jurisdictional error on the part of the tribunal has been identified by the first or second or third applicants; therefore, the application for review must be dismissed. 

2. As to the costs, the first respondent seeks costs fixed in the sum of $5,800.00.  The applicants say they ought not be made to pay these costs as it is only the husband who works.  The first respondent says she has completed her degree, master’s, and that she is paying school fees for their child.  Having heard those submissions, I am well satisfied that costs ought to follow the event and I particular observe the allegations made of bias being without any foundation.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Willis

Date: 24 February 2016