BLH15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 1588
•4 November 2020
FEDERAL COURT OF AUSTRALIA
BLH15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1588
Appeal from: BLH15 v Minister for Immigration & Anor [2019] FCCA 3379 File number: NSD 2166 of 2019 Judgment of: MOSHINSKY J Date of judgment: 4 November 2020 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – protection visa – whether the Tribunal made findings that were irrational, illogical or unreasonable – whether the Tribunal denied the appellant procedural fairness – whether the primary judge erred in rejecting grounds of judicial review – appeal dismissed Legislation: Migration Act 1958 (Cth), s 36 Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 74 Date of hearing: 25 June 2020 Counsel for the Appellant: Mr J King Solicitor for the Appellant: Varess Counsel for the First Respondent: Ms R Francois Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 2166 of 2019 BETWEEN: BLH15
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
MOSHINSKY J
DATE OF ORDER:
4 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.
THE COURT DIRECTS THAT:
3.Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.
4.In the absence of any agreement:
(a)within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);
(b)within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and
(c)in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction
The appellant, a citizen of Tonga, appeals from a judgment of the Federal Circuit Court of Australia dismissing her application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal).
The appellant arrived in Australia in April 2013. In January 2014, she applied for a Protection (Class XA) visa. On 30 June 2014, a delegate of the then Minister for Immigration and Border Protection refused her application for a protection visa.
The appellant applied to the then Refugee Review Tribunal for review of the delegate’s decision. On 12 June 2015, the Refugee Review Tribunal affirmed the decision under review in circumstances where the appellant failed to appear at the hearing. That decision was set aside by the Federal Circuit Court on 1 August 2016: BLH15 v Minister for Immigration and Border Protection (2016) 310 FLR 429. The matter was remitted to the Administrative Appeals Tribunal for determination according to law.
A hearing before the Tribunal, differently constituted, took place on 20 January 2017. On 21 January 2017, the Tribunal affirmed the delegate’s decision.
The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 22 November 2019, the primary judge dismissed the application for judicial review and published reasons for decision (the Reasons).
The appellant appeals to this Court from the judgment of the Federal Circuit Court. The appellant’s notice of appeal contains five grounds, but the appellant no longer relies on ground 4.
In my view, for the reasons that follow, none of the remaining four grounds is made out. It follows that the appeal is to be dismissed.
The Tribunal’s reasons
The Tribunal set out the relevant law at [3]-[7] of its reasons dated 21 January 2017. The Tribunal then summarised the appellant’s claims and evidence. The Tribunal noted, at [9], that in her protection visa application the appellant claimed, in summary, that:
(a)she was born in Tonga; her five children and parents live in Tonga; she arrived in Australia in April 2013 as the holder of a visitor visa;
(b)she believes her ex-husband was a drug dealer and trafficker; he physically abused her almost every day over the five or six years of their marriage; he suspected her of informing the police about his illegal activities; even though they were divorced he never ceased stalking and intimidating her, sending her abusive messages and threatening to kill her; she feared that if she returned to Tonga he would physically harm her and could kill her; and
(c)she complained to the police a few times but nothing was done to stop her ex-husband abusing and stalking her.
The Tribunal noted that, attached to the protection visa application were photocopies of documents said to show that the appellant and her ex-husband were married in 1997 and that their divorce was finalised in 2011. It appears from the appellant’s evidence, discussed later in the Tribunal’s reasons, that the appellant and her ex-husband separated in 2006.
The Tribunal noted at [11] that the appellant attended a protection visa interview on 13 June 2014 and added to her claims. As summarised in the Tribunal’s reasons, the appellant claimed that:
•After her marriage in 1997 she lived with her husband in … the village in which she was raised. Her parents live in [the village] and her marital home was within walking distance of their home. Her ex-husband is still living in their marital home and had installed another woman there the previous year.
•After she separated from her husband she and her children moved into her parents’ home. The children would spend alternate weeks with him and he was given custody of them when they subsequently divorced.
•After the separation her husband would turn up at the house drunk or on drugs almost every weekend to force her to come to his house to sleep with him. She feared that if she returned to Tonga he would try to force her to come back to him. Asked why he would do this if he was living with another woman she said he is not trying to marry this person and he would always look for her (the Applicant).
•Her ex-husband did not learn of her departure for Australia until about March 2014.
•It was put to her that the lengthy delay between her arrival in Australia in April 2013 and her application for protection was an indication that she did not genuinely fear harm in Tonga. She said she had not understood the system and had not had sufficient money to apply.
The Tribunal referred at [12] and [13] to the procedural background of the matter.
The Tribunal referred, at [14], to the hearing on 20 January 2017, noting that the appellant was assisted by an interpreter in the Tongan and English languages.
The Tribunal summarised the appellant’s evidence at the Tribunal hearing at [15] of its reasons. Relevantly for the purposes of the grounds of appeal, the summary of the evidence included the following points:
•She confirmed her claim that [her ex-husband] was violent to her throughout their marriage. She said the violence continued after she left him and went back 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. He still viewed her as his wife. On one occasion when she went to the house she had also been bashed by the woman with whom he was living. Asked whether she had been treated for injuries in hospital she said she had gone to hospital on one occasion but had not divulged that she was a victim of domestic violence. She had also attended an organization for women and children. Asked if she had any medical or hospital records of the treatment she received she said she had asked a previous case worker, from Life Without Barriers, to obtain them and send them the Tribunal; she added that this person had probably not been able to do so.
…
•Asked whether her four brothers, also living in [the village], had simply stood by while [her ex-husband] was regularly violent towards her she said they fought with him many times and she eventually told them not to involve themselves any more. On one occasion, when [her ex-husband] parked his car outside the family home and was swearing at her, her father came out and bashed him and damaged the car. Asked if this had not stopped [her ex-husband’s] violence she said it had not.
•Regarding her claim that after she separated from [her ex-husband] he would force her to come back to his house to sleep with him I asked how this would have happened if there was another woman living with him there. She said they sometimes met at a concert or a club in the city and he would ask her to come to the house with him. There was nobody else living in the house at these times and it was only when they went there one night and she was attacked by the woman that she realised [her ex-husband] had been lying to her.
…
•Noting that she had been away from Tonga for more than three years and that [her ex-husband] has been living with another woman for longer than this I put to her it did not seem very likely that he would be interested in her if she were to return. She said she is on good terms with his siblings in Australia who tell her he is still in love with her and wants her to be with him for the sake of their children. She did not want to have anything to do with him but she knew he would do the same things he had done previously if she returned. Her children told her that he sometimes calls her name in his sleep.
•I put to her that if she were to return to Tonga it would be as a person who had been divorced from [her ex-husband] for some years. Any harm she might fear from him would not be a matter of domestic violence but a simple criminal matter, on which the police would act. In these circumstances there seemed no reason why she would be unable to obtain police protection. She said she really did not know what would happen.
At [17], the Tribunal summarised the appellant’s claim, namely that she feared harm in Tonga from her ex-husband, a man she said was violent towards her throughout their marriage. After referring to relevant principles of law, the Tribunal stated at [19] that the appellant’s account of her experiences in Tonga was unsubstantiated from any source, apart from her marriage and divorce certificates, and she had provided little or no circumstantial detail regarding the harm she claimed to have suffered from her husband in the past.
At [20], the Tribunal accepted that the appellant married her ex-husband in 1997 and that she moved into his house and had children with him. The Tribunal also accepted that the marriage was not a happy one and that she experienced some degree of domestic violence over the next eight or nine years until, in about 2006, she left him and moved back to live with her parents in their house in the same village. The Tribunal accepted that the appellant and her ex-husband divorced in 2011, with some form of shared custody arrangement for their children.
The Tribunal then reasoned at [21]-[25]:
21.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.
22.I have further concerns about the Applicant’s claims of violence after the separation, given that she has 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 [the village].
23.As also put to the Applicant at the hearing it seems 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. I accept that he has joint custody of their children but there is nothing in her claims to indicate any kind of dispute over custody arrangements. At the hearing she suggested he was still in love with her and said she had heard from her daughter that he calls her name in his sleep but 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.
24.Finally, the Applicant arrived in Australia in April 2013 but did not apply for protection until January 2014, after her visitor visa had expired and she was living unlawfully in the community. Such a delay casts doubt on the genuineness of her claim to fear harm in Tonga. I have considered the reasons she offered when this issue was put to her for comment at the hearing, to the effect that she had insufficient money and did not know how to apply for protection, but I do not find these explanations convincing, particularly given the fact that her authorized agent who helped prepare the application was a relative of her former defacto partner, a man whom she met shortly after arriving in Australia.
25.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.
Accordingly, the Tribunal concluded at [26] that it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason should she return to Tonga, now or in the reasonably foreseeable future. The Tribunal was therefore not satisfied that she was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth). The Tribunal considered, at [27], the complementary protection criterion in s 36(2)(aa). The Tribunal concluded that the appellant did not satisfy this criterion. The Tribunal affirmed the decision not to grant the appellant a protection visa.
The proceeding in the Federal Circuit Court
The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision of 21 January 2017. The appellant was represented by counsel at the hearing before the primary judge. The appellant relied on an amended application. Although this contained five grounds, the appellant did not press ground 4 (see the Reasons, [25]).
The primary judge outlined the background to the application at [1]-[5] of the Reasons, and provided a detailed summary of the Tribunal’s decision at [6]-[24] of the Reasons. The primary judge then dealt with grounds 1, 2, 3 and 5 in the amended application. In relation to ground 5, the primary judge also dealt with an alternative submission advanced on behalf of the appellant, namely that there had been a denial of procedural fairness. Although the procedural fairness submission had not been pleaded, the primary judge indicated that she was nevertheless prepared to deal with it, given that (as was acknowledged by the Minister) there was no prejudice to the Minister.
The primary judge rejected each of grounds 1, 2, 3 and 5 (including the alternative contention). Accordingly, the primary judge dismissed the application for judicial review.
The Reasons deal with each of the grounds in some detail. As there is a broad correlation between the grounds advanced before the primary judge and the grounds in the notice of appeal, it will be convenient to refer to the primary judge’s reasons for rejecting each of the grounds in the course of considering the grounds of appeal.
The appeal
The appellant appeals to this Court from the judgment of the Federal Circuit Court. The notice of appeal contains five grounds but, at the hearing before me, the appellant’s counsel indicated that the appellant no longer relies on ground 4. Grounds 1, 2, 3 and 5 (omitting particulars) are as follows:
1.The primary judge erred in holding (at [51]-[55]) that it was reasonably, logically, and rationally open to the second respondent (Tribunal) to conclude that it was “generally implausible” that (i) the applicant’s family would have been “unable” to protect her from her ex-husband between 2006 and 2013; and (ii) that her ex-husband would have “continued to harm her in the face of these strong and repeated defences”.
2.The primary judge erred in holding (at [63]-[66]) that the Tribunal correctly applied the “real chance” test and its conclusion was rational, logical, and reasonable insofar as the Tribunal concluded that it is “still less believable that [the appellant] 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]” (Tribunal’s Decision at [22]).
3.The primary judge erred in holding (at [78]-[79]) that the Tribunal correctly applied the “real chance” test, sufficiently responded to the appellant’s substantial, clearly articulated arguments about why her husband would still be interested in her should she be returned to Tonga, and considered all important evidence that was material to that claim.
…
5.The primary judge erred in holding (at [110]-[117]) that the Tribunal observed the requirements of procedural fairness.
Consideration
Ground 1
Ground 1 challenges the primary judge’s holding (at [51]-[55]) that it was reasonably, logically and rationally open to the Tribunal to conclude (at [22] of its reasons) that it was “generally implausible” that the appellant’s family would have been “unable” to protect her from her ex-husband between 2006 and 2013 and that her ex-husband would have “continued to harm her in the face of these strong and repeated defences”.
This ground broadly correlates with ground 1 of the amended application before the primary judge. By that ground (set out in the Reasons at [27]) the appellant contended that, insofar as the Tribunal considered that the appellant 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. I will summarise the primary judge’s consideration of ground 1 and then turn to the appellant’s appeal submissions.
The primary judge summarised the appellant’s submissions in relation to ground 1 at [28]-[40] of the Reasons. The appellant relied on DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135]; and SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at [22].
The primary judge considered the ground at [42]-[57] of the Reasons. The primary judge stated that the Tribunal’s reasons must be read fairly and as a whole, rather than as fragmented and isolated matters and without regard to the context, referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo).
The primary judge stated at [44] that, contrary to the appellant’s submissions, the Tribunal did not find that the appellant’s family would have protected her on every occasion in the period from 2006 to 2013 such that she could not have been the victim of repeated physical violence and rape at the hands of her ex-husband. Further, the primary judge held, the Tribunal did not find (as the appellant had submitted) 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 appellant had familial protection.
Rather, the primary judge stated at [45], in light of the information before it, the Tribunal was “not satisfied” that the appellant 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. Further, the primary judge stated, 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 appellant if she were to return to Tonga ten years after they were together and more than six years after their divorce. The primary judge stated at [46] that the Tribunal’s lack of satisfaction was based on a number of findings, which the primary judge identified as:
(a)the fact that the appellant’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 appellant’s evidence as to post-separation incidents;
(d)the appellant’s delay in applying for a protection visa after she arrived in Australia; and
(e)the passage of time since the appellant’s separation from her ex-husband.
The primary judge held at [47] that the Tribunal’s findings in these respects were rationally open to it based on the appellant’s own evidence.
The transcript of the Tribunal hearing was in evidence before the primary judge. At [48]-[50], the primary judge referred to and quoted relevant parts of the transcript:
48.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).
49.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?
50.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 primary judge’s core reasoning in relation to ground 1 was at [51]-[56]:
51.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”.
52.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.
53.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.
54.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.
55.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.
56.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.
Accordingly, the primary judge concluded that ground 1 was not made out.
The appellant’s submissions in support of ground 1 of the notice of appeal may be summarised as follows. Noting that the primary judge referred to “difficulties” inherent in the appellant’s own evidence (Reasons at [53]), the appellant submits that there were no “difficulties” that were not explained by the appellant. The appellant submits that in each instance in which the appellant offered an explanation for a perceived difficulty, the Tribunal failed to respond to or engage with the appellant’s explanation. The appellant’s outline of submissions at [37] sets out each of the “difficulties” expressly referred to by the Tribunal and provides the appellant’s explanation as to each such perceived difficulty.
The appellant submits that: the appellant’s case was that, despite the best efforts of her brothers and father to stop her ex-husband from harming her on the occasions on which they were in a position to do so, he would not stop; it was obvious that she was not and could not always be in the company of her brothers and father, nor could she reasonably be expected to live a life by which her brothers and father continually chaperoned her around their small village; 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 the incidents described by the appellant did not happen simply because her brothers would have 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; and the material before the Tribunal was incapable of supporting a conclusion that she had effective protection from her brothers and father, or that it would be reasonable to expect the appellant to live a life sheltered from her ex-husband under their eye.
I note that, in the appellant’s outline of submissions at [37(e)], reference is made to the Tribunal’s statement at [24] that the appellant’s delay in applying for a protection visa cast doubt on the genuineness of her claim. The Minister objected to that paragraph of the appellant’s outline (and to [38] of the outline to the extent it relied on [37(e)]) on the basis that the submission relied on points covered by ground 4 before the primary judge, which had been abandoned. It is unnecessary to resolve this objection as the submission made in [37(e)] of the appellant’s outline does not advance ground 1 of the notice of appeal. Ground 1 is concerned with the Tribunal’s statements at [22] of its reasons, not the Tribunal’s reliance on the appellant’s delay.
In my view, the appellant’s submissions misstate the findings or statements made by the Tribunal at [22] of its reasons, and thus suffer from a similar weakness as the submissions before the primary judge. For example, the Tribunal did not find, as submitted by the appellant at [41] of her outline, “that she had effective protection from her brothers and father”. Nor did the Tribunal find, as submitted in the same paragraph, “that it would be reasonable to expect the appellant to live a life sheltered from her ex-husband under their eye”.
Further, in my view, the appellant’s submissions amount to a challenge to merits of the Tribunal’s findings, rather than identifying a proper basis to conclude that the relevant findings (at [22] of the Tribunal’s decision) were unreasonable, illogical or irrational. As the primary judge stated, the appellant’s own evidence provided a basis upon which it was open to the Tribunal to draw the relevant inferences. As the primary judge stated at [51] of the Reasons, the appellant’s evidence was sufficient to support the Tribunal’s findings that it was “generally implausible” that the family 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”. Further, as the primary judge stated at [52], it was open to the Tribunal to reason (as it did) that the actions of the appellant’s family would have discouraged her 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 appellant’s account of events in the period from 2006 to 2013.
For these reasons, no error is shown in the primary judge’s conclusions in relation to the relevant findings of the Tribunal. Ground 1 is not made out.
Ground 2
By this ground, the appellant contends that the primary judge erred in holding (at [63]-[66]) that the Tribunal correctly applied the “real chance” test and that its conclusion was rational, logical and reasonable insofar as the Tribunal concluded (at [22]) that it is “still less believable that [the appellant] 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]”.
This ground broadly correlates with ground 2 before the primary judge. By that ground, the appellant contended that, insofar as the Tribunal inferred or assumed (at [22]) that the appellant 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 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.
The primary judge summarised the appellant’s submissions in relation to that ground at [59]-[62] of the Reasons.
The primary judge’s consideration of ground 2 was at [63]-[67] of the Reasons. The primary judge stated that the Tribunal did not make a positive finding that the appellant “would be able” to look to her family for protection. Rather, it found it “still less believable that [the appellant] 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).
The primary judge reasoned at [64]-[66]:
64.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.
65.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).
66.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.
Accordingly, the primary judge held that ground 2 was not made out.
In support of ground 2 in the notice of appeal, the appellant submits that the distinction made by the primary judge at [63] of the Reasons was highly artificial and elevates form over substance. The appellant submits that: the Tribunal evidently proceeded on an assumption or inference that the appellant would be able to look to her family for protection; that assumption was unwarranted (cf CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [40]-[42]); and if the Tribunal drew an inference, it was not reasonably, rationally or logically open on the material before the Tribunal.
The appellant submits that: the Tribunal erred in its application of the forward-looking “real chance” test; even if the Tribunal were right in concluding that the appellant’s father and 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 the Tribunal could be satisfied that there was not a real chance that they might fail to protect her (as she said had happened in the past); the Tribunal failed to consider whether, despite the best efforts of her 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 described in her evidence; there was similarly no “evident and intelligible justification” for the Tribunal’s conclusion that her father and brothers would always be able to protect her (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ) or its implicit conclusion that it would be reasonable to expect her to live her life staying at home or always in their company; still less was there any material before the Tribunal upon which it could be so confident in its findings as to avoid the need to consider “whether its findings might be wrong” (see Guo at 576); the “variety of factors” referred to by the primary judge (at [65]) were flawed for the reasons submitted in relation to ground 1.
In my view, the appellant’s submissions seek to challenge the merits of the Tribunal’s findings rather than identifying a proper basis to conclude that the findings were irrational, illogical or unreasonable, or that the Tribunal misapplied the “real chance” test. The statement in issue is the statement in the last sentence of [22] of the Tribunal’s reasons that the Tribunal found it “still less believable that [the appellant] 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. It was open to the Tribunal, on the basis of the appellant’s own evidence, to make this statement. As the primary judge noted in [64] of the Reasons, the appellant’s evidence suggested that her family had provided “strong and repeated defences” (Tribunal’s reasons at [22]) against her ex-husband after they separated and she moved into the family home. As the primary judge stated, there was no evidence suggesting that such protection would not or could not continue to be provided in the future (unless the appellant told her family members not to involve themselves). It was reasonably open to the Tribunal to form the view that it did in the last sentence of [22].
For these reasons, no error is shown in the relevant part of the primary judge’s reasons and ground 2 is not made out.
Ground 3
By this ground, the appellant contends that the primary judge erred in holding (at [78]-[79]) that the Tribunal correctly applied the “real chance” test, sufficiently responded to the appellant’s substantial and clearly articulated arguments about why her husband would still be interested in her should she be returned to Tonga, and considered all important evidence that was material to the claim.
This ground broadly correlates with ground 3 of the amended application before the primary judge, by which it was contended that the Tribunal failed to respond to a substantial and clearly articulated argument and erred in applying the “real chance” test. In the particulars to that ground it was contended that the Tribunal failed to consider: whether the appellant’s ex-husband “would try to force her to come back to him” (see Tribunal’s reasons at [11]) on the basis that he was “still in love with [the appellant] and wants her to be with him for the sake of their children” (see the Tribunal’s reasons at [15]); and whether, in the event her ex-husband tried to force her to come back to him, there was a real chance the appellant might need protection in the foreseeable future.
The primary judge summarised the appellant’s submissions on this ground at [69]-[73] of the Reasons. The primary judge’s consideration of ground 3 was at [76]-[80] of the Reasons. The primary judge’s core reasoning was at [78]-[79]:
78.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.
79.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.
In support of ground 3 in the notice of appeal, the appellant submits that: the appellant expressly 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 reasons at [11]); she said that the siblings of her ex-husband were in Australia and they told her that her ex-husband was still in love with her and wants her to be with him for the sake of their children; the Tribunal did not take account of the appellant’s cogent evidence that her ex-husband’s own siblings had told her he still wants her to be with him for the sake of their children; that evidence was squarely directed to why “he would still be interested in her if she were to return” even after some years had passed (cf Tribunal’s reasons, [23]); four of her children continue to live with him; the Tribunal accepted that he has joint custody of them (Tribunal’s reasons, [23]); he remains their father and she remains their mother; there is nothing implausible about a father wanting the mother of his children to be with them; the Tribunal failed to take account of that substantial and clearly articulated argument. The appellant also submits that: the appellant’s evidence with respect to the proposition that her ex-husband’s siblings in Australia had told her that he wants 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; there was no response to that argument and no account taken of that important evidence.
In my view, for the reasons given by the primary judge, the Tribunal did consider, in the sense of meaningfully engage with, the appellant’s submission. In particular, in the last sentence of [23], the Tribunal noted that, at the hearing, the appellant had suggested that the ex-husband was still in love with her and that she had heard from her daughter that he calls her name in his sleep. The Tribunal responded to that evidence by stating 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”. Further, the Tribunal concluded at [25] that it was not satisfied that there was “any reason to believe that [the ex-husband] would wish to harm [the appellant] if she were to return to Tonga now, ten years after they were last together and more than six years since their divorce”. Thus, the Tribunal did consider the appellant’s submission. Further, there is no indication in these statements that the Tribunal misapplied the “real chance” test.
Accordingly, no error is shown in the relevant part of the reasons of the primary judge, and ground 3 is not made out.
Ground 5
By ground 5, the appellant contends that the primary judge erred in holding (at [110]-[117]) that the Tribunal observed the requirements of procedural fairness. The particulars to this ground of appeal are as follows:
a.The Delegate expressly found that the appellant’s “ex-husband forced her to sleep with him at his house on several occasions after they had separated”.
b.The primary judge correctly held (at [115]): “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]).”
c.The primary judge erred in holding (at [117]) that “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.” The Tribunal did not suggest to the appellant that the sex she had with her ex-husband after they separated was anything other than forced, or that she was making it up.
d. The appellant was denied procedural fairness.
This ground broadly correlates to the appellant’s alternative contention in respect of ground 5 of the amended application before the primary judge. Although the alternative contention was not pleaded, the primary judge nevertheless was prepared to deal with it. I will first outline the way in which the primary judge dealt with both ground 5 of the amended application (as pleaded) and the alternative contention; I will then turn to the appellant’s submissions on appeal.
Ground 5 of the amended application before the primary judge challenged the Tribunal’s finding at [21] that the appellant’s description of certain incidents involving her ex-husband since their separation “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”. That finding was challenged on the basis that the Tribunal made inferences from intermediate facts for which there was no evidence, and its decision was irrational, illogical or unreasonable. The primary judge set out the appellant’s submissions on this ground at [85]-[100] and considered the ground at [104]-[109]. In the course of dealing with this ground, the primary judge set out some extracts from the transcript of the Tribunal hearing. In particular, extracts were set out in [89]-[91] of the Reasons:
89.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.
90.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.
91.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.
In dealing with ground 5 as pleaded, the primary judge stated at [104] that, had the Tribunal findings been as characterised by counsel for the appellant, there would be much force in the appellant’s submissions. However, the primary judge stated, the Tribunal did not make a finding that the appellant “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, the primary judge stated, the Tribunal 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, the appellant’s “description of [these] 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). The primary judge stated that this “description of [these] incidents” was clearly a reference to the evidence set out at [91] of the Reasons. The primary judge concluded, at [109], that ground 5 as pleaded was not made out.
The primary judge then considered, at [110]-[118], the appellant’s alternative contention that she had been denied procedural fairness. The primary judge summarised the appellant’s submissions at [113] and the Minister’s submissions at [114]. The Minister’s submissions included that the appellant 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.
The primary judge reasoned at [115]-[117] as follows:
115.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]).
116.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).
117.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.
I now turn to the appellant’s submissions in support of ground 5 in the notice of appeal.
The appellant relies on the principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [32]-[35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. In that passage, their Honours stated:
32In Alphaone the Full Court rightly said:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”
(Emphasis added.)
33The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.
34Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
(Footnote omitted.)
The appellant relied in oral submissions on SZBEL at [37] and [42]-[43].
The appellant notes that the primary judge found (at [115]) that this was not a case where the appellant was put on notice that the veracity of the whole of her evidence was in issue before the Tribunal, and there is no challenge to that finding. The appellant submits that, as the primary judge found at [115], “[b]ased on what the delegate found [the appellant] 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”. However, the appellant submits, the Tribunal did not limit its review to an assessment of the risk or chance of future harm.
The appellant submits that the delegate expressly found that “her ex-husband forced her to sleep with him at his house on several occasions after they had separated” and “she last slept with him in 2011”. The appellant submits that the Tribunal expressly rejected that version of events, by concluding at [25] that it was “not satisfied that [the appellant] was subjected to domestic or sexual violence by her ex-husband after she left him in about 2006”.
The appellant submits that the Tribunal never put to the appellant that she was not in fact raped by her ex-husband on several occasions after they had separated, as had been found by the delegate; that was an adverse conclusion that was not obviously open on the known material and was not identified by the Tribunal as an issue in relation to the review; indeed, the Tribunal rejected the whole of the appellant’s account of the violence and abuse she said she suffered at the hands of her ex-husband between 2006 and 2013.
The appellant referred in her outline of submissions to the passages from the transcript of the Tribunal hearing that are set out in the Reasons at [89]-[91]. In oral submissions, the appellant referred to passages in the transcript at Appeal Book pp 149 and 151-152. The appellant submits that those passages were the extent of the Tribunal’s questioning of the incidents; those exchanges are to be considered in the context of the appellant’s other evidence that her ex-husband had raped her after they separated (see the appellant’s application for a protection visa at Appeal Book p 35; the delegate’s decision record at pp 5, 10; and the Tribunal’s reasons at [15]).
The appellant submits that: nothing the Tribunal said to the appellant was sufficient to put her on notice that her account of abuse between 2006 and 2013 was in issue; the duration of the hearing before the Tribunal was only one-and-a-half hours; the appellant was not represented and the tepid questioning by the member during the hearing on peripheral matters did not put the appellant on notice that her account of sexual violence between 2006 and 2013 was in issue; insofar as the Tribunal rejected outright the findings of rape that had been made by the delegate, the problem is more fundamental.
In my view, no error is shown in the reasons or approach of the primary judge to the appellant’s alternative contention below.
First, it is important to have regard to the statement or finding actually made by the Tribunal at [21]. As the primary judge stated at [104], the Tribunal did not make a finding at [21] that the appellant 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, the Tribunal 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, the appellant’s “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). Further, as the primary judge noted, the Tribunal reference to the appellant’s “description of the incidents” was clearly a reference to the evidence set out at [91] of the Reasons.
Secondly, the Tribunal put to, or sufficiently raised with, the appellant that, if her ex-husband had taken up with another woman at about this point and installed her in the house in the circumstances the appellant suggested, it was difficult to accept that the appellant’s husband would have continued to force the appellant to go there for the purpose of sexual intercourse with him. The Tribunal recorded the fact that it had put this to the appellant in the last sentence of [21]. The passage of the transcript set out in the Reasons at [91] bears this out. On the basis of that passage, I consider that the Tribunal did sufficiently raise with the appellant the difficulty the Tribunal perceived with her account referred to in the last sentence of [21] of the Tribunal’s reasons.
Thirdly, the Tribunal’s lack of satisfaction (at [25]) that the appellant had been subjected to domestic or sexual violence by her ex-husband after she left him in about 2006, was also based on the matters referred to in [22] of the Tribunal’s reasons. Those concerns were put to the appellant during the hearing, as indicated in [22] of the Tribunal’s reasons.
I note for completeness that in [23] and [24] of the Tribunal’s reasons, the Tribunal referred to having put other matters to the appellant during the Tribunal hearing. These paragraphs confirm that the Tribunal was well aware of the need to put to the appellant concerns that it had about her account.
In light of the above, I am not satisfied that any error has been shown in the primary judge’s treatment of the alternative contention, or that the Tribunal denied the appellant procedural fairness as alleged. Accordingly, this ground is not made out.
Conclusion
It follows that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also order that the appellant pay the Minister’s costs of the appeal.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. Associate:
Dated: 4 November 2020
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