BLH15 v Minister for Immigration
[2019] FCCA 3379
•22 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLH15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3379 |
| Catchwords: MIGRATION – Review of decision of Administrative Appeals Tribunal – whether legal unreasonableness – whether the Tribunal failed to consider a substantial clearly articulated argument, made an error in applying the “real chance” test, failed to raise a dispositive issue at the hearing or denied the Applicant procedural fairness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.477 |
| Cases cited: BLH15 v Minister for Immigration and Border Protection [2016] FCCA 1198; (2016) 310 FLR 429 |
| Applicant: | BLH15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 990 of 2017 |
| Judgment of: | Judge Barnes |
| Hearing date: | 24 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr King |
| Solicitors for the Applicant: | Fragomen |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 990 of 2017
| BLH15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 21 January 2017 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Tonga, arrived in Australia as the holder of a tourist visa in April 2013. That visa expired in July 2013. In January 2014 the Applicant applied for a protection visa. In support of her application the Applicant claimed that her ex-husband had physically abused her almost every day in the last five to six years of their marriage. She claimed that he had been suspicious that she may have informed the police about his illegal involvement in drug trafficking and that after they divorced he did not stop intimidating her, that he sent her abusive messages and threatened that one day he would end her life. She claimed to fear that her ex-husband would mistreat her, hurt her physically and that he may kill her. She claimed that he had stalked her, was violent toward her and wanted to hurt her. She claimed she had complained to the police in Tonga “a few times” but that nothing had been done to stop her husband from abusing and stalking her.
On 30 June 2014 the application was refused by a delegate of the First Respondent. The delegate accepted that the Applicant had experienced domestic violence during her marriage, including after the separation. The delegate recorded that the Applicant said that the last time she was forced to sleep with her ex-husband was some time in 2011. The delegate found that the Applicant’s delay in lodging her application indicated that she did not fear persecution and/or significant harm and that even if the Applicant’s fear of her ex-husband was genuine, country information indicated that there was adequate state protection for victims of domestic violence in Tonga and she had the protection of her father and brothers if she returned to Tonga.
The Applicant sought review by the Tribunal on 31 July 2014. She failed to attend a scheduled Tribunal hearing. The Tribunal affirmed the delegate’s decision on 12 June 2015 (the first Tribunal decision). The Applicant sought review in this court. On 1 August 2016 Judge Driver set aside the first Tribunal decision and remitted the matter to the Tribunal (see BLH15 v Minister for Immigration and Border Protection [2016] FCCA 1198; (2016) 310 FLR 429). His Honour found that the decision was vitiated by fraud committed on both the Tribunal and the Applicant by the Applicant’s authorised representative who had falsely represented to the Tribunal that the Applicant knew of the hearing invitation and planned to attend the hearing.
On 20 January 2017 the Applicant attended a hearing before the Tribunal, differently constituted. A transcript of that hearing is in evidence as an annexure to the affidavit of Amelia Whalley-Routley affirmed 25 May 2017. On 21 January 2017 the Tribunal affirmed the delegate’s decision not to grant her a protection visa. It is this decision that is the subject of these proceedings.
Tribunal Decision
In its reasons for decision the Tribunal summarised the Applicant’s claims made in support of her protection visa application. It recorded that she claimed that she had lived with her husband in the village in which she was raised within walking distance of her parents’ home. After she separated from her husband she and her children moved into her parents’ home and her children spent alternate weeks with their father. Her ex-husband was given custody of the children after the divorce. Her evidence to the delegate was that after the separation her ex-husband continued to live in the marital home and that another woman had moved in with him.
The Applicant was recorded as having told the delegate that after the separation her ex-husband would “turn up” at her parents’ home drunk or on drugs almost every weekend to “force her to come back to his house to sleep with him”. She claimed to fear that if she returned to Tonga he would try to force her to come back to him. When asked why he would do this if he was living with another woman, the Applicant had said that he was not trying to marry this other woman and “would always look for her”. The Applicant also told the delegate that her ex-husband did not learn of her departure for Australia (in April 2013) until about March 2014.
The Tribunal recorded that the delegate had put to the Applicant that the lengthy delay between her arrival in Australia and her application for protection indicated that she did not genuinely fear harm in Tonga. She claimed that she had not understood the system and that she had not had sufficient money to apply for the visa.
The Tribunal also summarised the Applicant’s evidence at the Tribunal hearing of 20 January 2017. She claimed that the main reason that she left Tonga was to run away from her ex-husband and that since she married him she had experienced many problems because of his drug use. This was said to have affected her independence and freedom. She claimed that living with her ex-husband was like living in prison and that he was violent towards her. She said she did not really know what she feared if she returned to Tonga, but that she knew the woman living with her ex-husband was facing the same problems she had faced.
The Applicant’s evidence was that while her ex-husband smoked marijuana, he had never been in trouble with the police over his drug use, but when asked why he would have been suspicious that she had informed on him to the police (as she claimed), the Applicant claimed that she had told the police about his drug use, but that their only response had been to ask her to bring the marijuana to show them as evidence.
The Applicant confirmed her claim that her ex-husband was violent to her throughout their marriage and that the violence continued after she left him and went back to her parents’ home (which she told the Tribunal was in about 2006). She claimed that if her ex-husband saw her in town with her friends he would bash her and would sometimes force her to return to his house to sleep with him and that he still viewed her as his wife. She claimed that on one occasion when she went to his house she was bashed by the woman with whom he was living. When asked whether she had been treated for injuries in hospital, she claimed that she had gone to hospital on one occasion, but had not divulged that she was a victim of domestic violence. She had attended an organisation for women and children. She claimed that she had asked a caseworker to obtain medical and hospital records to send to the Tribunal, but added that this person had probably not been able to do so. There is no evidence that the Tribunal received any such documentation.
The Applicant told the Tribunal that she had complained to the police about her ex-husband on three occasions, but that their only response had been to urge her to reconcile with him. She claimed the police were his friends.
When asked whether her four brothers who lived in her home village had simply stood by while her ex-husband was regularly violent to her, the Applicant told the Tribunal that they had fought with her ex-husband on many occasions, but that she had eventually told them not to involve themselves. The Tribunal recorded that she claimed that on one occasion her father had bashed her ex-husband and damaged his car when he was parked outside the family home and swearing at her, but that this had not stopped his violence.
The Tribunal also recorded that when it asked the Applicant how her ex-husband would force her to come back to his house to sleep with him if there was another woman living there, she said that they sometimes met at a concert or a club in the city and that he would ask her to come to the house with him. She claimed that there had been nobody else living in the house at those times and it was only when they went there one night and she was attacked by the woman that she realised that her ex-husband had been lying to her.
The Applicant told the Tribunal that her ex-husband was still living in his house with their children and another woman. She was not in touch with him, but she spoke to her children when they were at her parents’ home. The Tribunal put to her that if her ex-husband had not asked her parents where she was until a year after she left Tonga, he did not seem to be very interested in having anything to do with her. She said it may have been a few months (rather than a year) after her departure that he approached her parents. She could not recall exactly what her parents had told her.
The Tribunal stated that it had also put to the Applicant that as she had been away from Tonga for more than three years and her ex-husband had been living with another woman for longer than this, it did not seem likely that he would be interested in her if she were to return. She claimed that her ex-husbands’ siblings in Australia had told her that he was still in love with her and wanted her to be with him “for the sake of their children”. She did not want to have anything to do with him and claimed that he would do the same things as he had done previously if she returned. Her children told her that he sometimes called her name in his sleep. When the Tribunal put to her that if there was any further harm this would be a criminal matter on which the police would act and that there seemed to be no reason why she would be unable to obtain police protection, the Applicant was recorded as stating that she really did not know what would happen.
The Tribunal also recorded that it raised with the Applicant its concerns that she had delayed seeking protection for over seven months after arriving in Australia and that this might cast doubt on the truth of her claim to fear harm. She claimed that she had delayed because she did not have any money and did not know how to go about applying for a visa. She agreed that the person who had been her authorised recipient when she applied for the visa was a relative of her former de facto partner whom she had met within three weeks of arriving in Australia. She explained that she had not told her partner that she was living unlawfully in Australia until her tourist visa expired, at which point he told her that he had a relative who might be able to help.
Under the heading “findings and reasons”, the Tribunal considered the Applicant’s claims to fear harm in Tonga from her ex-husband who was violent towards her throughout their marriage. It observed that the Applicant’s account of her experiences in Tonga was unsubstantiated from any other source (apart from her marriage and divorce certificates). It found that she had provided “little or no circumstantial detail regarding the harm she claims to have suffered from her husband in the past” and that at the hearing she had been “able to offer little additional information or clarification of aspects of her claims”. However the Tribunal accepted that the Applicant had not been well-served by the person who originally prepared her protection visa application and that subsequent professional advice had generally addressed procedural issues, rather than the substance of her claims. The Tribunal acknowledged that at the hearing the Applicant had been emotionally upset a number of times, but was satisfied that this had not prevented her from articulating her claims and participating effectively in the proceeding.
Taking these considerations together, the Tribunal was prepared to accept that the Applicant had married her ex-husband in 1997 (when she was nearly 18), moved into his house and had children with him. It accepted that the marriage was not a happy one and that the Applicant had experienced “some degree of domestic violence” over the next eight or nine years until, in about 2006, she left her husband and moved back to live with her parents in their house in the same village. The Tribunal accepted that the Applicant and her husband divorced in 2011, with some form of shared custody arrangement for their children.
However the Tribunal also stated:
21. I have concerns about the accuracy of the Applicant’s claim that she was subjected to physical violence by [the Applicant’s ex-husband] after their separation, and that on a number of occasions he was able to force her to return to his house for the purpose of sleeping with her. In some contrast to this claim, her description of these incidents at the hearing appeared to indicate that she had been willing to return with him to the house until one occasion when she was accosted and beaten there by another woman. She suggested that [her ex-husband] had lied to her about his relationship with this person. As put to her, if [her ex-husband] had taken up with another woman at about this point and installed her in the house in the circumstances she suggests, it is difficult to accept that she (the Applicant) would have continued to go there for the purpose of sexual intercourse with [the Applicant’s ex-husband] or that he would force her to do so.
22. I have further concerns about the Applicant’s claims of violence after the separation, given that she had four brothers living in the same village and was living in her parents’ house. When this was put to her at the hearing she suggested that her brothers had fought with [her ex-husband] many times until she asked them not to involve themselves any further, and that on one occasion her father beat him when he came to the house. I accept that the ability of her close family members to protect her may have been somewhat limited while she was married to [her ex-husband] and living with him. However, I find it generally implausible that they would have been unable to protect her when she left him and moved back into her family home and that [her ex-husband] would have continued to harm her in the face of these strong and repeated defences of her. It is still less believable that she would be unable to look to her family for protection, should she need it, if she were to return to live with them in [her home village].
In addition, as put to the Applicant at the hearing, the Tribunal found that it seemed “generally implausible” that her ex-husband would continue to wish to harm her if she were to return to the village, “given that he has been living with another woman for a number of years”. The Tribunal accepted that the ex-husband had joint custody of their children, but found that there was nothing in the Applicant’s claims to indicate any kind of dispute over custody arrangements. Insofar as at the hearing the Applicant had suggested that her ex-husband was still in love with her and that her daughter had told her that he called her name in his sleep, the Tribunal found that “the fact that they have been apart for over ten years and divorced for over six years makes it difficult to believe that he would still be interested in her if she were to return or would be disposed to wish to harm her”.
Finally, the Tribunal had regard to the fact that while the Applicant had arrived in Australia in April 2013, she had not applied for protection until January 2014 (after her visitor visa had expired and she was living unlawfully in the community). It found that such delay cast doubt on the genuineness of her claim to fear harm in Tonga. The Tribunal did not find the Applicant’s explanations for the delay convincing, particularly given the fact that the authorised agent who helped her prepare the visa application was a relative of her former de facto partner whom she had met shortly after arriving in Australia.
The Tribunal concluded (at paragraph 25) that:
In the light of all the information before the Tribunal I am not satisfied that the Applicant was subjected to domestic or sexual violence by her ex-husband after she left him in about 2006 and moved back into her family home. Nor am I satisfied there is any reason to believe that he would wish to harm her if she were to return to Tonga now, ten years after they were last together and more than six years since their divorce. I am not satisfied there is a real chance that she would suffer harm from him of any kind. She does not claim to fear harm in Tonga for any other reason and no other reason is apparent on the face of the information before the Tribunal.
The Tribunal was not satisfied that the Applicant met either the Refugees Convention criterion or the complementary protection criterion and affirmed the decision not to grant her a protection visa.
Extension of Time
The Applicant sought judicial review of the Tribunal decision. She now relies on an amended application. It contains five grounds. Ground 4 was not pressed.
As the judicial review application was filed outside the 35-day period provided for in s.477(1) of the Migration Act 1958 (Cth) (the Act), the Applicant required an extension of time under s.477(2) of the Act. The First Respondent did not actively oppose the application for an extension of time, albeit suggesting that there were features of the Applicant’s case which tended against granting an extension of time. The solicitor for the First Respondent did not seek to make oral submissions in response to the written and oral submissions of counsel for the Applicant in this respect. I granted the extension of time sought and the matter proceeded to final hearing.
Ground 1
Ground 1 in the amended application is as follows:
Insofar as the Tribunal considered that the applicant could not have been a victim of repeated physical violence and rape at the hands of her ex-husband between 2006 and 2013 because her family members would have always protected her, the Tribunal erred in making inferences from intermediate facts for which there was no evidence, and its decision was irrational, illogical, or unreasonable.
Particulars
a. The applicant gave evidence that she was the victim of repeated attacks of physical violence and rape by her ex-husband between when she married him in 1997 and when she left Tonga in 2013 (Tribunal’s Decision at [9], [11], [15]). She said the attacks occurred all the time including when he saw her in town or at a concert or club (Tribunal’s Decision at [15.7], [15.10]), and that the police were friends of her ex-husband and had refused to act (Tribunal’s Decision at [15.8]).
b. The Tribunal accepted that the applicant had been a victim “of domestic violence over the next eight or nine years” after the applicant married her ex-husband in 1997 until she left him in 2006 (Tribunal’s Decision at [20]).
c. The Tribunal considered the applicant’s claim that she continued to be abused by her ex-husband between 2006 and 2013 to be “generally implausible” because her family members would have been able to protect her when she left him in 2006 and moved back into the family home (Tribunal’s Decision at [22]), which the Tribunal found was “in the same village” (Tribunal’s Decision at [20]) as her ex-husband’s home and which the applicant had said was “within walking distance” (Tribunal’s Decision at [11.1]) and “about ten minutes away” (at [15.5]) from his home.
d. The Tribunal inferred or assumed that the applicant’s family members would have been able to protect her from her ex-husband on every occasion between 2006 and 2013 on which he might have threatened her with violence, and that her family members were capable of engaging in, and would have always engaged in, “strong and repeated defences of her” (Tribunal’s Decision at [22]). There was no evidence for those inferences or assumptions, and there was no evident and intelligible justification for proceeding on that basis.
In addressing ground 1, counsel for the Applicant referred to DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641 at [30], citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135] and SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 at [22] in support of the proposition that a decision is illogical or irrational “if there is no logical connection between the evidence and the inferences or conclusions drawn”.
The Applicant submitted that the Tribunal had erroneously concluded that her family members would have been able to protect her and would have protected her from violence at the hands of her ex-husband on every occasion between 2006 and 2013 on which he might have threatened her with violence. It was submitted that there was no logical connection between the evidence before the Tribunal and this conclusion.
It was noted that the Tribunal had concluded at paragraph 22 of its reasons:
… I find it generally implausible that they [her four brothers living the village] would have been unable to protect her when she left him and moved back into her family home and that [her ex-husband] would have continued to harm her in the face of these strong and repeated defences of her. It is still less believable that she would be unable to look to her family for protection, should she need it, if she were to return to live with them in [her home village].
In substance, this was said to amount to a conclusion that it was “impossible” for any of the many incidents of abuse complained of by the Applicant between 2006 and 2013 to have ever occurred because the Applicant’s four brothers would have protected her on every such occasion.
However it was suggested that such a conclusion of “impossibility” was made in circumstances where the Tribunal had accepted that the Applicant had experienced some degree of domestic violence over eight or nine years until she left her ex-husband in about 2006 and that thereafter she lived in her parents’ home which was within walking distance, or about ten minutes away, from her ex-husband’s home. It was submitted that the Applicant was thus readily accessible to her ex-husband.
It was also contended that the Tribunal’s conclusion had to be seen in light of the fact that the Applicant had made a number of claims of harm by her ex-husband in the course of the protection visa application process, including a claim in the visa application form that although they had divorced, her ex-husband had never stopped intimidating her, sending abusive messages and threatening that one day he would end her life and that he had physically abused her publicly.
Counsel for the Applicant pointed to the fact that in summarising her evidence at the protection visa interview, the delegate had recorded claims that even after the Applicant separated from her ex-husband (courtbook page 61):
… he would turn up drunk or on drugs at her parents’ place almost every weekend looking for her … he went looking for her and dragged her to his house, slept with her and she would return to her parents’ house the next morning … he forced her to go to his house to sleep with him … he threatened her that he would harm her if he found her with other men.
It was also said to be relevant that the delegate had accepted not only that the Applicant had experienced domestic violence during her marriage, but also that her ex-husband had forced her to have sex with him at his house on several occasions after they had separated, the last occasion being, on her evidence, in 2011.
Further, the Tribunal recorded that the Applicant’s evidence at the Tribunal hearing included evidence that even after she left her ex-husband and returned to her parents’ home in about 2006 “if he saw her in town with her friends he would bash her and sometimes force her to return to his house to sleep with him” and that he did this from time to time when they inadvertently “met at a concert or a club in the city”.
It was acknowledged that during the Tribunal hearing there was an exchange in relation to the Applicant’s brothers. The Tribunal had put to the Applicant that it was “a bit hard to understand” the following (transcript page 20 lines 18 to 26):
MEMBER: W-what about your four brothers who were living in [the village]?
Do they just stand by and let their sister be bashed up by this man all the time?
INTERPRETER: The-the-they fought many times. And after the time that I told them not to be involved any more, there was a time that he came home, with his vehicle, just park outside, then swearing at me, calling me to come out. And my, my brothers come out and bash him and vehicles, the vehicles as well.
MEMBER: Alright, well, um, didn’t that stop him? Didn’t your four brothers and your father stop him being violent to you?
INTERPRETER: No.
The Applicant submitted that her case to the Tribunal was that despite the best efforts of her brothers and father to stop her ex-husband from harming her, he would not stop. It was said to be obvious that she was not, and could not always be, in the company of her brothers and father after 2006. The Applicant submitted however that the Tribunal had reasoned that there was no real chance of harm at the hands of her ex-husband “because” she would always have been and would be protected by her family. It was contended that this reasoning did not engage with her evidence that she sometimes did things on her own apart from her family and that there was no evidence for an inference or assumption that her family members would have been able to protect her on every occasion on which her ex-husband might have threatened her with violence (as claimed in particular (d) to ground 1).
The Applicant submitted that no rational, logical and reasonable Tribunal acting with due appreciation of its responsibilities and drawing inferences only from findings based on the evidence could have concluded that it was “impossible” for the incidents described by her to have ever happened “for the reason” that her brothers had tried to protect her from her ex-husband and would have succeeded in protecting her from her ex-husband on every occasion on which she claimed to have been abused, raped, or harmed by him between 2006 and 2013. On this basis it was contended that the Tribunal’s decision was irrational, illogical or unreasonable.
In oral submissions counsel for the Applicant pointed out that the Applicant had confirmed to the Tribunal that her ex-husband was violent to her during the marriage and that the violence continued after she left him and went to live in her parents’ home in about 2006 and that “if he saw her in town with her friends he would bash her and sometimes force her to return to his house to sleep with him”. The Applicant’s contention was that the Tribunal had concluded in substance that her claim that she had experienced harm could not be believed because her brothers or father could have and would have protected her from her ex-husband on every occasion she claimed to have experienced harm from him. The effect of the Tribunal’s reasoning was said to be that it was of the view that there was no real chance of harm to the Applicant because she had familial protection. It was contended that no rational or reasonable Tribunal could have reached this conclusion on the Applicant’s evidence, particularly given her clear evidence about doing things without her family. It was submitted that the Tribunal’s conclusion in this respect self-evidently could not be correct and was unreasonable, whether considered as the drawing of inferences from intermediate facts for which there was no evidence or on the basis that the ultimate decision was itself irrational, illogical or unreasonable. In essence, there was said to be no evident or intelligible justification for the Tribunal’s conclusion that there was no real chance that the Applicant would experience future harm because post-separation she had never suffered harm at her ex-husband’s hands because her family had always protected her. It was suggested that reasonable minds could not differ in this respect.
The First Respondent took issue with the characterisation of the Tribunal’s findings and reasons asserted in this ground and in the submissions for the Applicant and contended that the impugned findings were rational inferences supported by the material the Applicant put before the Tribunal.
Consideration
The Tribunal’s reasons must be read fairly and as a whole, rather than as fragmented and isolated matters scrutinised for error without regard for the context in which such findings were made (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559).
The impugned findings in paragraph 22 of the Tribunal decision are set out at [20] above.
As the First Respondent submitted, and contrary to the Applicant’s submissions, the Tribunal did not find that the Applicant’s family would have protected her on every occasion in the period from 2006 to 2013 such that she could not have been a victim of repeated physical violence and rape at the hands of her ex-husband. It did not find that it was “impossible” for any of the incidents of abuse complained of to have occurred or that there was no real chance of future harm “because” the Applicant had familial protection.
Rather, in light of all the information before it, the Tribunal was “not satisfied” that the Applicant had been subjected to domestic or sexual violence by her ex-husband after she left him in about 2006 and moved back into the family home. In addressing the future, the Tribunal had regard to its lack of satisfaction in that respect and also to its lack of satisfaction that there was any reason to believe that the ex-husband would wish to harm the Applicant if she were to return to Tonga ten years after they were together and more than six years after their divorce.
The Tribunal’s lack of satisfaction was based on a number of findings:
a)The fact that the Applicant’s account of her experiences in Tonga was “unsubstantiated from any source, apart from her marriage and divorce certificates”;
b)The limited evidence, detail or clarification she provided to support her claims;
c)Difficulties, implausibilities and concerns the Tribunal observed in the Applicant’s evidence as to post-separation incidents;
d)The Applicant’s delay in applying for a protection visa after she arrived in Australia; and
e)The passage of time since the Applicant’s separation from her ex-husband.
The Tribunal’s findings in these respects were rationally open to it based upon the Applicant’s own evidence.
In particular, in relation to her family the Applicant had suggested that her four brothers who continued to live in the village were “the one[s] who look after [her]”, that they had fought with her ex-husband “many times” and had ceased doing so only when she instructed them to do so (transcript page 15 line 4 and page 20 lines 20 to 21). Further, she referred to one particular occasion on which her ex-husband came to her house and (according to the transcript) her brothers came out and bashed him and his vehicle (transcript page 20 lines 21 to 23) (although it appears this was understood by the Tribunal as a reference to the Applicant’s father).
The extract from the Tribunal hearing referred to by the Applicant in submissions must be considered in context. The Tribunal raised a concern with the Applicant, as follows (transcript page 20 lines 11 to 19):
MEMBER: One thing, that, I, I, I have to say, I find it a bit hard to understand, er, [Applicant], is the following.
Um, you lived with [your ex-husband] for seven years or so and he constantly violent to you, so violent that sometimes you say you have to go to [the hospital] for treatment.
And even after you walk out, go back to live with your parents, er, he’s still violent towards you, if he sees you out somewhere, he’ll bash you up.
And you say “well the police won’t, won’t help me.”
W-what about your four brothers who are living in [the village]?
Do they just stand by and let their sister be bashed up by this man all the time?
As set out at [37] above, the Applicant’s response to these questions was that “they fought many times. And after the time that I told them not to be involved any more, there was a time that he came home, with his vehicle, just park outside, then swearing at me, calling me to come out. And my, my brothers come out and bash him and the vehicles, the vehicles as well” (transcript page 20 lines 20 to 25). The Tribunal asked the Applicant whether her four brothers and father stopped her ex-husband being violent. She replied “No”. However this evidence was reasonably open to be understood by the Tribunal as suggesting that the Applicant’s brothers and her family were in fact capable of repelling her ex-husband and were willing to do so to protect her, that they had done so with vigour and would do so again if the Applicant wished, but that this was subject to the instruction she had given them not to do so.
The Applicant’s evidence was sufficient to support the Tribunal’s findings that her family had engaged in “strong and repeated” defences of her and that it was “generally implausible” that they would have been “unable” to provide her with protection against her ex-husband after the separation and that he would have “continued to harm her in the face of these strong and repeated defences”.
It was open to the Tribunal to reason (as it did) that the actions of the Applicant’s family would have discouraged the Applicant’s ex-husband from continuing to harass her (as she claimed had occurred) and to have regard to this as one of the factors that tended against acceptance of the Applicant’s account of events in the period from 2006 to 2013, in particular her claims of continual harassment or violence post-separation. However, contrary to the Applicant’s submission, the Tribunal did not find that it was “impossible” that any claimed incidents of post-separation violence had occurred.
As the First Respondent submitted, when properly understood, the Tribunal’s findings in this respect were rational inferences supported by the material which the Applicant put before it. It has not been established that there was no evidence to support inferences drawn by the Tribunal or that the decision was irrational, illogical or unreasonable. While reasonable minds may differ, such reasoning does not involve illogicality of the sort alleged by the Applicant. The Tribunal had regard to difficulties inherent in the Applicant’s own evidence in concluding that her account of her historical abuse was “generally implausible”. This was not a case in which only one conclusion was open on the evidence (cf SZMDS at [135]). The Tribunal was not obliged to accept uncritically the Applicant’s claims in this respect and did not require specific evidence to rebut or reject her account. There was a logical connection between the Applicant’s own evidence and the conclusions drawn by the Tribunal.
This was not a case in which the Tribunal made a positive finding that the Applicant was not subjected to violence from her ex-husband after their separation and reached a conclusion on this basis. Rather, the Tribunal was “not satisfied” on the Applicant’s evidence that she was subjected to domestic and sexual violence by her ex-husband after she left him and moved back into the family home. As the First Respondent submitted, this distinction is significant. It bears upon the characterisation to be given to the so-called “familial protection” findings of the Tribunal.
The Tribunal dealt with this issue on the basis that the protection available to the Applicant tended to suggest that her account was not credible, not that she did and would be able to access family protection, but simply that the Applicant’s own evidence about the protection available from her family made it less likely that the account she gave in relation to her ex-husband was correct.
Insofar as the Applicant submitted that the Tribunal found that it was “impossible” for the incidents complained of to have occurred and in that context had not engaged with the fact that the Applicant was not always in the company of her family members, this mischaracterises the Tribunal findings. It made no such finding of impossibility.
Ground 1 is not made out.
Ground 2
The second ground in the amended application is as follows:
Insofar as the Tribunal inferred or assumed that the applicant would be able to “look to her family for protection, should she need it, if she were to return to live with them in [the village]” (at [22]), the Tribunal erred in applying the “real chance” test, made inferences from intermediate facts for which there was no evidence, and its decision was irrational, illogical or unreasonable.
Particulars
a. There was no evidence that the applicant’s family members can and will provide her with effective protection on every occasion on which she might need it.
b. The Tribunal failed to consider whether the applicant might face a real chance of persecution or significant harm in the foreseeable future notwithstanding the (assumed) best efforts of her family members to protect her from her ex-husband.
c. There was no evident and intelligible justification for proceeding on that basis.
The Applicant referred to her submissions in relation to ground 1 in support of ground 2. It was suggested that the Tribunal had concluded (at least inferentially) that she would be able to “look to her family for protection, should she need it, if she were to return to live with them in [the village]”. The Applicant submitted that this was an erroneous conclusion and that the Tribunal erred in its application of the forward-looking “real chance” test. It was submitted that even if the Tribunal was correct in concluding that the Applicant’s father and four brothers would be willing to protect her on every occasion on which her ex-husband might come looking for her, there was no evidence upon which it could be satisfied that they would succeed in doing so. It was submitted that the Tribunal had failed to consider whether, despite the best efforts of the Applicant’s father and brothers, there was a “real chance” that her ex-husband might succeed in harming her in the future in one of the many ways she had described in her evidence.
There was also said to be no evident and intelligible justification for what was said to be the Tribunal’s assumption that the Applicant’s father and brothers would always be able to protect her (see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76]) or for the implicit view that it would be reasonable to expect the Applicant to live her life staying at her parents’ home or always in the company of her family.
It was submitted that the court could safely infer that the Tribunal had misunderstood the real chance test because of the way it proceeded to reason about what would happen to the Applicant if she returned to Tonga and because there was no evident and intelligible justification for proceeding on a basis which failed to grapple with the exigencies of daily life.
The First Respondent submitted that the Tribunal had not erred in applying the real chance test, that the degree of protection capable of being afforded by relationships with one’s family may be relevant in relation to whether an applicant faces a real chance of persecution and that this ground was not made out.
Consideration
The Tribunal did not make a positive finding that the Applicant “would be able” to look to her family for protection. Rather it found it “still less believable that [the Applicant] would be unable to look to her family for protection, should she need it, if she were to return to live with them” in the village (emphasis added).
As the First Respondent pointed out, in cases involving assertions of family violence the degree of protection capable of being afforded by relationships with one’s family may be relevant in relation to whether an applicant faces a real chance of persecution. In this case the Tribunal was of the view that the evidence of past events suggested that the Applicant’s family had provided what were on her evidence “strong repeated defences” against her ex-husband after she moved into the family home. There was no evidence suggesting that such protection would not or could not continue to be provided in the future (unless the Applicant told her family members not to involve themselves). It was reasonably open to the Tribunal on the Applicant’s evidence to find it “generally implausible” that the Applicant’s close family members would have been “unable” to protect her when she moved into her parents’ home and “still less believable” that her husband would have continued to harm her in the face such “strong and repeated defences”. It was also reasonably open to the Tribunal to have regard to this evidence in not being satisfied that the Applicant would face a “real chance” of persecution by her ex-husband if she returned to Tonga. There was an evident and intelligible justification in this respect. The Tribunal did not assume that the Applicant’s family would “always” be able to protect her. Nor was it implicit in its findings that the Applicant should or would always stay in her parents’ home or in the company of her family.
As indicated above, in reaching a conclusion about the real chance of future harm, the Tribunal had regard to a variety of factors, including its finding that there was no reason to believe that the Applicant’s ex-husband would seek to harm her, would “still be interested in her” or “would be disposed to wish harm to her” if she returned to Tonga, having regard to the passage of time. The Tribunal confidently found, for cumulative reasons, that it was not satisfied that the Applicant faced a real chance of persecution from her ex-husband. It was not obliged to second-guess itself and consider whether the Applicant may be exposed to a real chance of persecution in the event that her family failed to protect her (see Guo at 576).
As the First Respondent submitted, insofar as this ground involves a contention that the Tribunal failed to engage with or to properly understand the Applicant’s claim (on the basis that it assumed that she would always be in the presence of her family), this misunderstands the Tribunal’s reasoning with respect to this issue. The Tribunal’s reasoning was not to the effect that the Applicant would not face a risk of harm because she would “always” be with her family and hence able to access family protection. Rather, the Tribunal did not accept that the Applicant’s ex-husband continued to pose a risk of harm or would continue to harass her, given the matters of which she gave evidence. Such reasoning did not turn on the availability or otherwise of familial protection in the future, but rather was a case in which previous events, as well as the other findings the Tribunal made about the lengthy period of time that had passed since the Applicant’s separation and divorce and the delay in making her protection visa application, led it to the conclusion that it was not satisfied that there was a real chance the Applicant would suffer future harm from her ex-husband of any kind.
Ground 2 is not made out.
Ground 3
Ground 3 in the amended application is as follows:
The Tribunal failed to respond to a substantial, clearly articulated argument and erred in applying the “real chance” test.
Particulars
a. The applicant claimed to fear her ex-husband on the basis that “if she returned to Tonga he would try to force her to come back to him” (Tribunal’s Decision at [11.3]).
b. The applicant gave evidence during the hearing on 20 January 2017 that her ex-husband’s siblings in Australia had told her that her ex-husband “is still in love with her and wants her to be with him for the sake of their children” (Tribunal’s Decision at [15.13]).
c. The Tribunal found that the applicant’s ex-husband “has joint custody of their children” (Tribunal’s Decision at [23]).
d. The Tribunal failed to consider whether the applicant’s ex-husband “would try to force her to come back to him” on the basis that he “is still in love with her and wants her to be with him for the sake of their children”.
e. The Tribunal failed to consider whether, in the event her ex-husband tries to force her to come back to him, there is a real chance the applicant might need protection in the foreseeable future.
The Applicant contended that the Tribunal had failed to respond to a substantial, clearly articulated argument relying on established facts and that this constituted a denial of procedural fairness and a constructive failure to conduct the review in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ with whom Hayne J agreed at [95] and applied in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at [90] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. It was also submitted that the Tribunal had failed to consider critical material that was important to the Applicant’s claims in the sense considered in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] having regard to the remarks of Robertson J that the “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of the error”. Reference was also made to Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [70] and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [47] - [54].
The Applicant pointed out that the Tribunal recorded that she had expressly claimed to the delegate that she feared her ex-husband on the basis that “if she returned to Tonga he would try to force her to come back to him”. The Tribunal also recorded that the Applicant claimed that her ex-husband’s siblings in Australia had told her that her ex-husband “is still in love with her and wants her to be with him for the sake of their children”.
Counsel for the Applicant acknowledged that the Tribunal had referred to the notion that the ex-husband was still in love with the Applicant, but submitted that this was a “summary” referral. The Tribunal had found that the fact that the couple had been apart for over ten years and divorced for over six years made it difficult to believe that the ex-husband would still be interested in the Applicant if she were to return. However it was said that the Tribunal did not address the Applicant’s evidence that her ex-husband’s siblings in Australia had told her that he wanted her to be with him “for the sake of their children”. This evidence was said to be directed squarely at why the ex-husband would still be interested in the Applicant if she were to return to Tonga, even after some years had passed.
It was pointed out that, as disclosed to the court in an exhibit to the affidavit of the Applicant affirmed on 2 June 2017 in support of her application for an extension of time under s.477(2) of the Act, and as was said to have been claimed by her in her protection visa application, the Applicant had five children living in Tonga, one of whom had been born in 2010 with Downs Syndrome and the youngest of whom was born in 2011. It was submitted that the Applicant’s evidence with respect to the proposition that her ex-husband’s siblings in Australia had told her he wanted her to be with him for the sake of their children supported her claim that he would try to force her to come back to him in Tonga. However there was said to have been no response to this claim by the Tribunal and no consideration of the supportive evidence.
The Applicant acknowledged that at the Tribunal hearing the Tribunal had questioned what motive the ex-husband would have for continuing to be interested in her if she returned to Tonga, given the passage of time. However it was said not to be sufficient for the Tribunal to simply refer to the passage of time as an adequate basis for concluding that there was no reason for the Applicant’s ex-husband to still be interested in her when she had expressly given a reason (the sake of the children) why that would be so. It was contended that the issue was not custody arrangements, but whether the ex-husband wanted to be with the Applicant or wanted her to be with him and that the Tribunal had failed to engage with the reason the Applicant asserted that this was so.
The First Respondent understood that ground 3 involved a contention that the Tribunal had failed to consider the Applicant’s claim that her ex-husband would try to force her to come back to him if she returned to Tonga because he was still in love with her and wanted her to be with him for the sake of the children. It was pointed out that the Tribunal had accepted that the Applicant and the ex-husband retained some form of shared custody arrangements for their children and had acknowledged the Applicant’s claims that her ex-husband was still in love with her and called her name in his sleep and that as a result she feared he would seek to force her to come back to him. However the Tribunal was not satisfied on the material before it that the ex-husband would seek to “force” the Applicant to reunite with him in circumstances where they had been separated for over ten years and divorced for over six years and the ex-husband had been living with another woman for a number of years.
The First Respondent submitted that, properly understood, the Tribunal reasons revealed that it had squarely addressed the Applicant’s claim with respect to the ex-husband’s desire to reconcile with her. It was also submitted that the Tribunal had expressly addressed the ongoing relationship the children and the ex-husband’s asserted love for the Applicant in paragraph 23 of its decision.
Consideration
First, insofar as counsel for the Applicant suggested that it was in some way relevant that in an annexure to the Applicant’s affidavit of 2 June 2017 filed in support of her application for an extension of time the Applicant had disclosed five children living in Tonga, including one born in 2010 with Downs Syndrome and one in 2011, this information was contained in the Applicant’s undated 2017 antenatal record in relation to the expected birth of another child in October 2017. It would appear to post-date the Tribunal decision of 21 January 2017. There is no suggestion that this record was before the Tribunal.
In Part B of the Applicant’s protection visa application of 28 January 2014 she disclosed children born in Tonga in 1998, 2001, 2014 (which may be intended to be 2004) and 2011. There was no disclosure in the application of a child born in 2010 and the child born in 2011 was referred to both as a female and as the “adopted son” of the Applicant. However the delegate recorded that the Applicant claimed to have had 5 children with her ex-husband (born between 1998 and 2011), the last of whom had been “adopted out”.
As the First Respondent submitted, the Tribunal sufficiently had regard to the Applicant’s evidence referred to in the particulars to this ground. The claim that the Applicant’s ex-husband was still in love with her and wanted her to be with him for the sake of their children was not, in itself, an asserted basis for the Applicant’s claim to fear harm. Rather, her claim was that she feared violence from her ex-husband, including if he tried to “force” her to return to him. The Tribunal addressed her claims. It found it “difficult to believe” that, ten years after their separation and six years after divorce, the Applicant’s ex-husband would “still be interested” in her. It also found it difficult to believe that if the Applicant were to return, her ex-husband would be “disposed to wish to harm her”. Further, the Tribunal made a finding about the real chance of the Applicant suffering harm of any kind from her ex-husband.
It has not been established that the Tribunal failed to address a substantial, clearly articulated argument, erred in applying the “real chance” test or failed to consider material in the sense considered in SZRKT such as to give rise to a jurisdictional error.
This ground is not made out.
Ground 4
Ground 4 in the amended application was not pressed.
Ground 5
Ground 5 in the amended application is as follows:
Insofar as the Tribunal found, in relation to the applicant’s claim that her ex-husband repeatedly threatened to bash her unless she returned to his house for sex, that the applicant “had been willing to return with him to the house until one occasion when she was accosted and beaten there by another woman” (Tribunal’s Decision at [21]), the Tribunal made inferences from intermediate facts for which there was no evidence, and its decision was irrational, illogical, or unreasonable.
Particulars
a. During the hearing, the applicant claimed of her ex-husband that “wherever he saw me, any places he saw me, he would bash me up in that place”, and that “[s]ometimes he forced me and we have to go to their place”. The Tribunal repeated the applicant’s claim as follows: “you say that after you left him, he would force you to go back to his house to sleep with him”.
b. The Tribunal said in its reasons that the applicant’s “description of these incidents at the hearing” appeared to indicate that she “had been willing to return with [her ex-husband] to the house” for sex (Tribunal’s Decision at [21]).
c. There was no evidence that the applicant “had been willing to return with [her ex-husband] to the house” for sex.
d. No rational, logical, or reasonable Tribunal could have concluded, based on the applicant’s description of the incidents at the hearing, that the applicant ever desired or consented to sex with her ex-husband after they separated other than under duress and in response to his threats of physical harm.
As discussed further below, the Applicant was given leave to amend ground 5 to assert, in the alternative, a denial of procedural fairness. The Applicant has not filed a further amended application. However I have considered this alternative contention in the manner in which it was raised in the Applicant’s written and oral submissions.
It is convenient to consider first the ground as pleaded, which asserts no evidence, irrationality, illogicality or unreasonableness.
The Applicant submitted that the Tribunal erred in finding that on the occasions on which she claimed that she had been forced to have sex by her ex-husband after they had separated in 2006, she had been “willing to return with [her ex-husband] to the house” (until one occasion when she was accosted and beaten by another woman who was living there).
The Applicant took particular issue with paragraph 21 of the Tribunal reasons, which is as follows:
I have concerns about the accuracy of the Applicant’s claim that she was subjected to physical violence by [her ex-husband] after their separation, and that on a number of occasions he was able to force her to return to his house for the purpose of sleeping with her. In some contrast to this claim, her description of these incidents at the hearing appeared to indicate that she had been willing to return with him to the house until one occasion when she was accosted and beaten there by another woman. She suggested that [her ex-husband] had lied to her about his relationship with this person. As put to her, if [her ex-husband] had taken up with another woman at about this point and installed her in the house in the circumstances she suggests, it is difficult to accept that she (the Applicant) would have continued to go there for the purpose of sexual intercourse with [her ex-husband] or that he would force her to do so.
The Applicant submitted that the Tribunal made a finding that she had been “willing” to return with her ex-husband to the house for sex and that this gave rise to concerns on its part about the accuracy of her claim that she was subjected to physical violence by her ex-husband after their separation. Hence it was submitted that this “finding” materially affected the Tribunal decision.
Insofar as the Tribunal based its findings in paragraph 21 of its reasons on the Applicant’s evidence at the hearing, the Applicant suggested that her oral evidence as to the events addressed in this ground was limited. There was said to be no evidence of willingness on her part. It was submitted that no rational, logical or reasonable tribunal acting with due appreciation of its responsibilities could have concluded on the Applicant’s evidence that she ever desired or consented to have sex with her ex-husband after they separated in 2006, other than under duress and in response to his threats of physical harm, such that it was not consent.
Relevantly, at the Tribunal hearing, after the Applicant claimed that she separated from her ex-husband in: “Maybe 2006. I don’t know” and stated that she returned to her parents’ home, the hearing continued at transcript page 18 line 11:
MEMBER: Right. And did you, did he harm you at all after you separated?
INTERPRETER: Yes.
MEMBER: What happened?
INTERPRETER: Si-since we were separated, um, yeah, we are living in close with together, but I feel more independent at the time, I start to going out with my friends.
And wherever he saw me, any places he saw me, he would bash me up in that place.
Sometimes he forced me and we have go to their place.
At this time we’re separate, we aren’t divorced yet.
Um, probably, in his mind, he’s still have the right to come into the wife.
The Applicant submitted that her claims that “sometimes he forced me” and “probably, in his mind, he’s still have the right to come into the wife” were significant.
The Applicant acknowledged that there was a subsequent exchange at the hearing (at transcript page 20 line 27 to transcript page 21 line 5) as follows:
MEMBER: Now, you say that after you left him, er, he would, er, force you to go back to his house to sleep with him.
How does that, how would that happen, if he had um, another woman living with him in the house?
INTERPRETER: Um, sometimes if he …
If he, met in a _____ [inaudible], or car, in the city, and then he asked me to, to come home, with, with him. Um, at that time there was no woman in there, or if it’s night that we go there and this woman attacked me, and that was the time that I realise that he is lying, with regard to that.
However the Applicant submitted that this exchange had to be considered in the context of her earlier evidence relating to her claims that her ex-husband had raped her after they had separated. It was pointed out that the first manifestation of her claims was in her protection visa application. In response to the question “who do you think may harm/mistreat you if you go back [to Tonga]?” the Applicant claimed that her ex-husband would mistreat her and stated that “my experiences whilst living in Tonga was like living in hell. My ex-husband never left me alone eventough (sic) we have been divorced officially. He has stalked me, he is violent, he wants to hurt me badly”.
In addition, in response to question 47 in the visa application form, after suggesting that she believed that her ex-husband was a drug trafficker and mentally-sick, the Applicant had stated “he has stalked me even though we already divorced” and “he has physically abused me publicly even though we have divorced”.
In submissions, counsel for the Applicant suggested that the delegate’s summary of the Applicant’s evidence at her protection visa interview was also of importance, because the details of the claim recorded in the delegate’s decision would inform the approach that the Tribunal should have taken to the evidence given to it at the Tribunal hearing. The Applicant suggested that the delegate had recorded the following evidence (courtbook page 61):
The applicant said she fears her ex-husband if she returns to Tonga. When asked why, she said he used to go to her parents’ house looking for her … he beat her a lot … if she returns to Tonga … he will come and try to force her to return to him
It was also said to be relevant that the delegate had recorded “I asked the applicant how often her ex-husband would go and look for her at her parents’ house. She said he would turn up drunk or on drugs at her parents’ place almost every weekend looking for her” and when asked what harm the Applicant had experienced from her ex-husband after her divorce, she said “he went looking for her and dragged her to his house, slept with her and she would return to her parents’ house the next morning … he forced her to go to his house to sleep with him” and he “threatened her that he would harm her if he found her with other men”.
The Applicant submitted that the detail of all these claims had been accepted by the delegate. In fact the delegate accepted that the Applicant had experienced domestic violence during her marriage, including after the separation and that the Applicant was last forced to have sex with her ex-husband at his house after they had separated in 2011.
The Applicant also pointed to the Tribunal’s account of some aspects of her claims to it, in particular her claims that “the violence continued after she left him and went back to her parents’ home about 2006; if he saw her in town with her friends he would bash her and sometimes force her to return to his house to sleep with him. He still viewed her as his wife”, and that “after she separated from [her ex-husband] he would force her to come back to his house to sleep with him”.
The Applicant acknowledged that the Tribunal also recorded that at the hearing it had asked her how her ex-husband forced her to come back to his house for sex if there was another woman living there, and that the Applicants evidence had been said that sometimes they met at a concert or a club in the city and he “asked” her to come to the house with him. However it was submitted that the Tribunal had failed to engage with all the Applicant’s evidence in this respect.
The Applicant submitted that it was not open to the Tribunal to treat the words “he asked me to, to come home, with, with him” as evidence that all of her interactions with her ex-husband were consensual after the separation. It was contended that a reasonable and rational tribunal would not have proceeded in that way, especially given what was said to be the very detailed evidence provided to and accepted by the delegate about the manner in which the Applicant’s ex-husband forcibly took her to his home and threatened her with violence. The Applicant submitted that the only reasonable way in which those words could have been understood was that when her husband asked her to go home with him the Applicant went with him on the understanding that if she did not do so he would bash or threaten her or otherwise abuse her in the ways she had described in support of her protection visa application.
This was said to be sufficient to establish that the Tribunal misunderstood the Applicant’s claims or that there was no evidence for the Tribunal’s conclusion.
The First Respondent submitted that insofar as the Applicant asserted that the Tribunal erred by reasoning (at paragraph 21 of its decision) that the Applicant’s oral evidence with respect to the alleged incidents of sexual and physical violence post-separation “appeared to indicate that she had been willing to return with him to the house until one occasion when she was when she was accosted and beaten there by another woman”, no such error was established. It was acknowledged that the Applicant had previously made other characterisations of her post-separation sexual involvement with her husband, but submitted that it was open to the Tribunal to prefer a characterisation based on her oral evidence.
The First Respondent also submitted that the Tribunal’s approach to this aspect of the Applicant’s oral evidence had to be seen in the context of its reasons as a whole and, in particular, the Tribunal’s reference to the fact that the Applicant’s account of her experiences in Tonga was unsubstantiated from any source, that she had provided little or no circumstantial detail regarding the harm she claimed to have suffered from her husband in the past, and its finding that at the hearing she had been able to offer little additional information or clarification of aspects of her claims. The First Respondent submitted that, seen in this context and in light of the other expressions of concern by the Tribunal in relation to aspects of the Applicant’s evidence and claims, its finding in relation to her evidence about returning to her ex-husband’s home was not such as to lack an evident or intelligible justification. It was contended that, contrary to the Applicant’s submissions, the Applicant’s oral evidence to the Tribunal provided a factual basis on which the Tribunal proceeded to draw the inferences that it did. Such inferences were said to be rationally available and clearly explained by the Tribunal, such that no jurisdictional error was made out on the basis contended for by the Applicant.
In particular, it was submitted that the characterisation the Tribunal adopted of the Applicant’s evidence in this respect was one which the words in the Applicant’s evidence could reasonably bear when that evidence was considered in all the circumstances of the case. The First Respondent submitted that the Tribunal’s findings were reasonably open to it for the reasons that it gave and that the Applicant’s challenge amounted to little more than an “emphatic” expression of disagreement with the Tribunal’s reasoning and its rejection of her claims (see Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [5] and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40]).
Consideration
Had the Tribunal findings been as characterised by counsel for the Applicant there would be much force in the Applicant’s submissions. However, the Tribunal did not make a finding that the Applicant “had been willing to return with [her ex-husband] to the house until one occasion when she was accosted and beaten there by another woman”. Rather, it had regard to the fact that “[i]n some contrast” to her earlier claim that on a number of occasions her ex-husband was able to force her to return to his house for the purpose of sexual intercourse, her “description of the incidents at the hearing appeared to indicate that she had been willing to return with [her ex-husband] to his house, until one occasion when she was accosted and beaten there by another woman” (emphasis added). This “description of the incidents” was clearly a reference to the evidence set out at [91] above.
Contrary to the Applicant’s submission, in expressing concern about the accuracy of the Applicant’s earlier claim that she was forced to return to her husband’s house, the Tribunal did not simply interpret her evidence that she was “asked” to return home with her husband as implying a choice on her part and as an admission or indication that all her post-separation interactions with her ex-husband were consensual.
Even if other decision-makers may differ, it was reasonably open to the Tribunal to interpret the Applicant’s evidence in this regard as appearing to indicate that she had been willing to return to the house until one occasion when she was accosted and beaten there by another woman, and also open to the Tribunal to be of the view that this was in some contrast to her earlier evidence. This is not a case in which no reasonable decision maker could have taken such an approach.
Moreover, in expressing concern about the accuracy of the Applicant’s claim about being forced to return to the house with her ex-husband, the Tribunal also took into account its view (which it had put to the Applicant at the hearing) that if her ex-husband had taken up with another woman and installed her in his home (as the Applicant suggested), it was “difficult to accept” that the Applicant would have continued to go there for the purpose of sexual intercourse (that is, if in fact she went willingly) or that her ex-husband would force her to do so (that is, if she was not willing).
As the First Respondent submitted, the Tribunal’s concerns and the inferences it drew had a factual basis in the Applicant’s oral evidence to it. Such inferences were rationally available and the basis for such inferences was clearly explained by the Tribunal by reference not only to the matters addressed in paragraph 21 of the Tribunal’s reasons but also the matters outlined in paragraph 19 to 24 of the Tribunal decision.
It has not been established that the Tribunal erred in the manner contended for in ground 5 as pleaded.
Procedural fairness issue
The Applicant submitted, in the alternative, that there had been a denial of procedural fairness.
While Mr King accepted that ground 5 did not plead a denial of procedural fairness in the SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 sense (or otherwise), it was submitted that the particulars to this ground sufficiently encompassed the kind of considerations raised in the Applicant’s submissions and pointed out that this issue had been addressed in the First Respondent’s submissions. It was submitted that the omnibus claim of unreasonableness, understood in the broad sense, was capable of including a denial of procedural fairness when the effect of such denial was to render the decision unreasonable.
The Applicant also suggested that, to the extent it was necessary, there would be no prejudice if the court were to grant leave to amend ground 5 to include the words “or denial of procedural fairness” particularised in the manner that had been put in the written submissions and addressed in the Minister’s submissions. The First Respondent acknowledged that there would be no prejudice from the granting of such leave and I granted leave to the Applicant.
The Applicant pointed out that the delegate had expressly found that her “ex-husband forced her to sleep with him at his house on several occasions after they had separated”. It was contended that the Tribunal had erred in failing to put to the Applicant at the hearing that she had “consented” to have sexual intercourse with her ex-husband on the several occasions she claimed she had returned with him to the house. In support of this proposition, the Applicant again relied on the submission that the Tribunal had concluded that the Applicant “had been willing to return with [her ex-husband] to the home”. This was said to be an adverse conclusion that was not obviously open on the known material and that was not identified by the Tribunal to the Applicant as an issue arising in relation to the review in the sense considered in SZBEL at [32] - [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The First Respondent submitted that the Tribunal squarely raised with the Applicant the plausibility of her claim that she was forced to return to her ex-husband’s house for sex and asked her to expand upon this aspect of her account as required by SZBEL. It also appeared to be submitted that the Applicant should have understood that the truth (or otherwise) of all aspects of her evidence was “in issue” in circumstances where the veracity of her account was dispositive before the delegate and the Tribunal.
I am not persuaded by the suggestion that it was clear that the veracity of the Applicant’s account was dispositive before both the Tribunal and the delegate and thus that the Applicant should, and would, have understood that the truth (or otherwise) of all aspects of her evidence was “in issue”. The delegate accepted that the Applicant was forced to have sex with her ex-husband after they separated. Nothing in the delegate’s reasons indicated that her claim that she was forced to have sex with her ex-husband post-separation would be in issue before the Tribunal. Based on what the delegate found the Applicant would, and should, have understood that the central and determinative question on the review would be limited to an assessment of the risk or chance of future harm (see SZBEL at [43]).
However, the difficulty that faces the contention of jurisdictional error on the limited basis suggested by the Applicant is that, as observed at [104] above, the Tribunal did not in fact make a finding or reach a conclusion in paragraph 21 of its reasons that the Applicant had been “willing” to return to her ex-husband’s house to have sex with him on several occasions post-separation. Rather, it was of the view that the difference between the earlier and later claims made by the Applicant raised concerns about the accuracy of her initial claims that she was subjected to physical violence post-separation and on a number of occasions forced to return to his house for sex. It found that it was “difficult to accept that she (the Applicant) would have continued to go [to the ex-husband’s house] for the purpose of sexual intercourse with [him] or that he would force her to do so” (emphasis added).
Moreover, at the hearing the Tribunal raised its concern about the Applicant’s claim that her ex-husband forced her to go back to his house for sex after they separated. It has not been established that the Tribunal failed to raise a dispositive issue in the sense considered in SZBEL.
Jurisdictional error has not been established on the basis contended for by the Applicant. Ground 5 is not made out.
As no jurisdictional error has been established, the application must be dismissed.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 22 November 2019
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