BLL16 v Minister for Immigration

[2017] FCCA 2993

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLL16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2993

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Applicant: BLL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1239 of 2016

Judgment of: Judge Riethmuller

Hearing date: 10 October 2017

Date of Last Submission: 10 October 2017

Delivered at: Melbourne

Delivered on: 6 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the First Respondent: Mr Hosking

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1239 of 2016

BLL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applies for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 May 2016.

2. The applicant is a citizen of Nepal.  She arrived in Australia in February 2009 as a dependent of her husband when he came on a student visa.  She divorced from her husband in 2012, and thereafter, in May 2013, was granted a student visa that was valid until May 2014.  In January 2014, the applicant applied for a protection visa, which was refused by a delegate of the Minister in August 2014.  She then sought review by the Tribunal, which review application was heard in May 2016.  Five days later, the Tribunal affirmed the decision of the delegate.  The applicant then sought judicial review of that decision.

3. The applicant’s claim for a protection visa arises from her status as a divorced woman, and her fear of returning to Nepal as a divorcee, as a result of her ex-husband’s family, and the nature of Nepalese society, coupled with her belief that she will receive no support from her own family.

4. The Tribunal outlined the history of the matter and the key points that she makes in para.15 of its decision.  The Tribunal notes that the applicant attended college and university in Nepal, studying humanities, and was planning to work in a non-government organisation when she finished, as she wanted to help women and the poor in society.  She said that she stopped studying when her parents arranged for her to marry her husband, who was from another city in Nepal.  She said she did not continue her studies in Australia, as she was supporting her ex-husband.

5. Her concerns with respect to her position in Nepal if she returns as a divorced woman are outlined in para.15 as follows:

   k. She applied for a protection visa because her husband’s parents accused her of damaging their relationship. She said her parents-in-law, who live in Chitwan, 8 hours by car from Kathmandu, called her once in 2013 and told her that, if she returned to Nepal, they would not let her live properly in society but would abuse and insult her and threatened she would have ‘huge problems’ in she went back.  They also said these things to her when her husband kicked her out in August 2009.

   l. She is afraid to return to Nepal because of the accusations and threats from her parents-in-law.  On top of that, Nepal is a patriarchal society, where a divorced woman is blamed, abused and insulted even if she is innocent and cannot live in a peaceful environment.  This was why she had not been able to go back so far and could not go back to Nepal.

   m. She also knew from the Nepali news that a divorced woman like her would not be accepted positively in society and would have a hard and painful life.

   n. She fears that if she returns, society will not accept her, nor would her parents who have to live in that society.  As a divorced woman, she will be subjected to ‘mental torture’, which she said included being ostracised if she attends a party or festival because society believes in superstitions and hates single and divorced women.

6. The Tribunal also identified the applicant’s concerns with respect to her own parents in para.15 as follows:

   u. The applicant said several times that her parents would not let her into their house because they cared more about their prestige and the opinions of their friends than her and had told her that; but that she was not capable of living on her own.

   v. When the Tribunal expressed surprise that the applicant’s parents would not let her into their house, given the very caring and supportive letter they had provided, saying they felt so guilty that they sent her to Australia and she ended up divorced, the applicant said her father had told her one month back that he did not want to keep her with him.  This was the reason she was ‘totally helpless’.

   w. Asked why the Tribunal should not believe that her father was just supporting her to get a visa to remain in Australia, the applicant repeated that he just told her that if she went back to Nepal, he would not let her into his house because he cared more about his prestige than her.

7. There are some difficulties with the evidence that had been raised with respect to the threat to kill, which the Tribunal rejected, saying in para.15:

   o. To the Tribunal’s suggestion that the harm she described did not rise to the level of serious or significant harm as envisaged in the legislation, the applicant responded that, on 9 October 2009 her husband’s parents threatened they could ‘do anything’ to her if she returned to Nepal.  Asked why she had not mentioned this threat previously, the applicant said several times that she forgot and did not, think it was important at the time.

   p. When the Tribunal pointed out that she had also introduced the claim that her in-laws had threatened to kill her, when the threshold of harm was raised with her at her Departmental interview, yet made no mention of this threat in her written statement dated 22 April 2016, the applicant repeated that she forgot and did not think it important.

8. The Tribunal concluded:

   23. The applicant’s claims about the harm she fears if she returns to Nepal were vague and generalised, ranging from her life being ‘hell’ and ‘very depressing’ to being threatened by her in-laws with ‘huge problems’ and not being ‘positively accepted’ by society or her parents.  As discussed with applicant at hearing, the harm she claims to fear – including social stigma, blame, insults and verbal abuse, being socially ostracised or hated  does not rise to the level of serious or significant harm as envisaged in the legislation

   …

   35. …the Tribunal is not satisfied that the applicant has been truthful about her circumstances or the reasons she fears returning to Nepal and has serious concerns about her general credibility. The Tribunal does not accept that the applicant’s parents-in-law threatened to harm, kill or ‘do anything’ to the applicant amounting to serious or significant harm because of her failed marriage and divorce from their son. As stated above, the Tribunal is satisfied that suffering social stigma, not being ‘positively accepted’ by society or her parents, her life being ‘hell’ and ‘very depressing’, being blamed, insulted and verbally abused, being socially ostracised or hated – which the applicant claims she may suffer in Nepal – rises to the level of serious or significant harm, as defined in the Act.

   36.  Considered together, both singularly and cumulatively, the reasons discussed above lead the Tribunal to find that the applicant has not been truthful about her circumstances and the reasons she fear returning to Nepal.  On the basis of the evidence before it, the Tribunal is not satisfied that the applicant is in genuine fear of persecution for a Convention reason or that there is a real chance that she will suffer serious or significant harm on her return to Nepal.  Rather, it is the Tribunal’s view that the applicant fabricated her claims in order to achieve a migration outcome.

Grounds for review

Ground 1

1. The applicant did not pursue the first ground in the application.

Ground 2

1. Ground 2 was framed as follows:

   2. The Second Respondent made jurisdictional error by treating the father of the Applicant as her witness and whose evidence could not be challenged by her.

2. In support of ground 2, the applicant refers to the comments relating to the applicant’s father’s evidence before the Tribunal, where the Tribunal refers to the possibility of an argument that may “impugn the father’s veracity”.  The relevant parts of the Tribunal’s decision that give this context are important:

   16. At the request of the applicant, the Tribunal took evidence from the applicant’s father. He recounted his evidence, in terms similar to his written statement. Other key points in response to the Tribunal’s questions were as follows:

   a. He is working in Kathmandu as an accountant for a transport company and currently lives in his brother’s house in Sitapaila, while his house, which was damaged in the earthquake is being renovated.  He expects to be able to move back there in 2-3 months time and the government is giving some funds towards the renovation.

   b. He last saw his daughter in 2012-2013 when she came to Nepal for a month. She came back because she had suffered a lot in Australia, receiving lots of ‘profanities and threats’ and wanted to visit, so she came to Nepal.  She came to visit him at his house and told him everything but stayed in a house nearby.

   c. In a discussion as to whether his daughter was welcome in his house; and the extent of his concern about his social standing, the father spoke in generalities and avoided answering directly: he noted that because Nepal was a patriarchal society, there were negative attitudes towards divorced women; and that it would be difficult for him to welcome her, even though he wanted to do so, because ‘society was very bad’; that he may have to let her into his house but would face lots of social problems and she might suffer depression. 

   d. Asked several times, if he ever told his daughter that he would not let her into his house, he said variously that he did not say this formally because his ‘soul’ did not let him do this to her; that ‘because of social pressure it will be difficult, but I have not said this’.

   e. He had a belly operation two or three years ago in January 2014.  His family came to visit him while he was at the hospital.

   f. He wants his daughter to have a better future and better life in Australia.

   17.  Invited to comment on her father’s evidence, the applicant said her father normally had a bad memory and that was why he forgot the things he said to her.

   …

   28. The applicant also finds incongruous the applicant’s new evidence introduced at hearing that, because she was divorced, her parents would bar her from their house and forbid her to live in Kathmandu because they cared more about their social standing than her (paragraphs 15.s and 15.u).  Were this true, the Tribunal would expect that the applicant might have mentioned it in her earlier evidence.  As put to the applicant, this attitude also appeared to be inconsistent with the concern expressed in her parents’ letter of support, including their sense of guilt over her divorce.  The applicant again responded opportunistically, saying her father told her one month back that he did not want her with him (paragraph 15.v).  Again, this was not borne out by the evidence of the applicant’s father at paragraph 16.d.  The Tribunal also notes that there is no suggestion of this in her statement of 22 April 2016.  In view of the above, the Tribunal does not accept that the applicant’s parents would either bar her from their house or forbid her to live in Kathmandu, as claimed.

   29. In view of the Tribunal’s concerns about the applicant’s credibility the Tribunal does not accept her claim that her father had forgotten the things he said to her because he ‘normally had a bad memory’ (paragraph 17).  Moreover, it is dubious that she would have nominated him as a witness and encouraged the Tribunal to call him, if this were the case.  The Tribunal is also concerned at the representative’s suggestion that the applicant’s father could not admit to the Tribunal that he told the applicant that she was not welcome in his house, even if he did so (paragraph 18), as this appears to impugn the father’s veracity. 

3. The applicant argues that under the Migration Act 1958 (“the Act”) a person simply nominates witnesses, and that the Tribunal’s process is one of inquisition, rather than the curial process in the Courts.  Thus, the formal processes of impugning a witness, or having a witness declared hostile (to use alternative words), are not part of the process of the Tribunal hearing.  The applicant submits that such concepts have “no place in administrative proceedings”, and that as a result, the Tribunal’s process erred.

4. It does not appear to me that the Tribunal was contemplating some formal application to have the witness declared adverse under the Evidence Act or similar.  Rather, the Tribunal was explaining the difficulties in rationalising the evidence of the applicant and her father, and the claim that her father may have given false evidence to the extent that his evidence was inconsistent with her evidence.

5. The possible explanations for the father’s evidence being inconsistent with her evidence were: firstly, that her evidence was wrong; secondly, that her father had a very bad memory; and thirdly that her father’s evidence was false.  Clearly, the applicant did not wish to put the case that her own evidence was false.  The Tribunal member referred to the possibility of the father’s bad memory, and the applicant’s submissions in this regard, which would be unconvincing to anyone on an issue such as this.

6. Finally, the Tribunal turned its mind to the last alternative, which was that the applicant would require the Tribunal to reject the father’s evidence as being false, and prefer her evidence.  It is in this context that the Tribunal refers to impugning the father’s veracity.  It seems to me that this is simply an explanation of the reasoning process that the Tribunal went through in concluding that it did not accept the applicant’s evidence as to the rejection of her by her father.  To the extent that there is any argument that the Tribunal may be referring to more formal legal processes, it does not seem to me to be borne out in the context of the material.  Rather, it is a reading that would be too finely attuned to locating an error in the way in which the High Court has warned against in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6. In the circumstances, I am therefore not persuaded that this ground has been made out.

7. In any event, it was argued by counsel for the Minister, there is nonetheless an independent basis for the refusal of the application by the member, namely that the harm involved would not amount to serious or significant harm of the type within the ambit of the legislative provisions. 

8. It is difficult to conclude that simply being rejected by one’s own family would of itself amount to serious or significant harm within the meaning of the Act, unless this carried with it significant consequences such as a complete inability to subsist. In these circumstances, even if I am wrong in concluding that there was no error on the part of the Tribunal in para.29, it would nonetheless have made no difference to the outcome in this case, in light of the Tribunal’s findings at para. 30, which are set out below.

Ground 3

1. Ground 3 was framed as follows:

   3. The Second Respondent made jurisdictional error by failing to consider whether, even if the Applicant lacked credibility, there were grounds for the grant of a protection visa under section 36(2)(a) or 36(2)(aa) of the Act.

2. Firstly, it was argued that the Tribunal had erred in failing to refer to specific legislative section numbers or provisions.  I am not persuaded that the Tribunal must refer to specific legislative provisions in order to properly determine a matter of this type.  It is clear from the Tribunal’s early discussion of the law generally, at paras.6 to 10, that the Tribunal was aware of the appropriate primary provisions, and it is no error on the part of the Tribunal not to laboriously set out every possible provision and definition that falls within a large piece of legislation.

3. Turning then to the particular parts of the decision that are the subject of argument, the applicant acknowledges that the Tribunal rejected claims that the in-laws had threatened to kill her (see para.24) and, importantly, rejected the claim that she would have an inability to support herself if she was rejected by her parents and suffered significant ostracisation from society or social stigma, as explained in para.30, where the Tribunal said:

   30. As discussed with the applicant, the Tribunal does not accept that, if she returns to Nepal she will be totally helpless, incapable of supporting herself or living on her own in Kathmandu, where she has lived and studied before leaving Nepal.  By her evidence, she came to Australia to support husband, working to pay his fees, rent and utilities so he could study.  She has now lived independelty and worked for 7 years in Australia, a strange country and unfamiliar culture.  In the Tribunal’s view, as an educated woman, who speaks English and was previously aspiring to work in the NGO sector, including with women and the poor, the applicant is well placed to find employment in Kathmandu and would be able to avail herself of the support of women’s NGOs working for the rights of single and divorced women, as noted in the Department’s decision.

4. In substance, the case of the applicant was that the social stigma or ostracisation would be so significant that it would fall within the definitions of serious and significant harm, then referred to in ss.91R(2) and 36(2A), as defined in s.5 of the Act, as it was then enacted.

5. The Tribunal referred to these matters at paras.15.k to 15.p (as set out above), and then reasoned as follows:

   24. When this was pointed out, the applicant introduced new evidence that her parents-in-law threatened on 9 October 2009 that, if she returned to Nepal, they could do ‘anything’ to her and would harm her (paragraph 15.o).  The Tribunal finds disingenuous the applicant’s claim that she did not mention this threat previously in her statements because she forgot and did not think it was important; likewise that she made no mention in her latest statement of 22 April 2016, her claim that her in-laws threatened to kill her, which she introduced when the threshold of harm was raised with her at her Departmental interview (paragraph 15.p), even though she would have been aware from the Department’s decision record that this was an issue.  In the Tribunal’s view, the applicant fabricated the claim that her in-laws threatened her with harm or death in order to strengthen her case.

   …

   35. On the basis of the above, the Tribunal is not satisfied that the applicant has been truthful about her circumstances or the reasons she fears returning to Nepal and has serious concerns about her general credibility. The Tribunal does not accept that the applicant’s parents-in-law threatened to harm, kill or ‘do anything’ to the applicant amounting to serious or significant harm because of her failed marriage and divorce from their son. As stated above, the Tribunal is not satisfied that suffering social stigma, not being ‘positively accepted’ by society or her parents, her life being ‘hell’ and ‘very depressing’, being blamed, insulted and verbally abused, being socially ostracised or hated – which the applicant claims she may suffer in Nepal – rises to the level of serious or significant harm, as defined in the Act.

1. The Tribunal, in its discussions leading up to para.24, referred to country information, saying:

   22. In assessing the applicant’s claims, the Tribunal has carefully considered and weighed a range of independent material about Nepal and the position of single and divorced women there, including that submitted by the applicant and referred to in the delegate’s decision, as well as the recent DFAT country information report on Nepal, prepared expressly for protection status determination purposes.

   23. The applicant’s claims about the harm she fears if she returns to Nepal were vague and generalised, ranging from her life being ‘hell’ and ‘very depressing to being threatened by her in-laws with ‘huge problems’ and not being ‘positively accepted’ by society or her parents.  As discussed with applicant at hearing, the harm she claims to fear – including social stigma, blame, insults and verbal abuse, being socially ostracised or hated – does not rise to the level of serious or significant harm as envisaged in the legislation.

2. It appears clear that the country information referred to is that annexed to an affidavit filed in these proceedings, being a DFAT report from that year, where the following information is provided with respect to divorced women and single mothers:

   Divorced women and single mothers

   3.53 According to the Women’s Foundation Nepal (a non-profit NGO that assists women and children victims of domestic violence, abuse and poverty), it is difficult to obtain a divorce in Nepal. Legal changes have made it possible for a woman to divorce her husband and still keep some of the property, and even to gain child custody rights. However, such court cases can be lengthy and expensive and it can take many months to obtain a divorce if the woman makes any kind of property or custody claims. Social stigma against divorced women, who can be seen to have contravened family honour, is high. Social services such as refuges are inadequate and can be difficult to access. In the past, there were barristers to children of divorced women and single mothers obtaining Nepali citizenship given the legal requirement that citizenship be attested to by fathers. Under Part 2 of the 2015 Constitution, these issues have been resolved and any child born to a Nepali citizen mother, and whose father is unidentified, shall be provided citizenship. If the father is a foreign citizen, then citizenship of the child must follow the naturalisation process.

3. On the material before the Tribunal, it appears to be entirely open to the Tribunal member to have concluded that the harm complained of did not fall within the definitions in the legislation. 

4. It was argued that the Tribunal member failed to consider the possibility that harm may be of such significance that it was within the definition; however, there is no evidence of any particularisation of harm which goes beyond the general matters set out in the quotes above, save for where the Tribunal refers to a possible example of harm that the applicant gives, at para.15n, where the Tribunal said:

   n. She fears that if she returns, society will not accept her, nor would her parents who have to live in that society.  As a divorced woman, she will be subjected to ‘mental torture’, which she said included being ostracised if she attends a party or festival because society believes in superstitions and hates single and divorced women.

5. I am not persuaded that the Tribunal could have given more detailed reasons of their assessment of the claims of fear of harm by the applicant, in light of their generalised nature, than those reasons that the Tribunal did give. 

6. To the extent that there may be more detail in the discussion in the transcript (as referred to in the reasons of the Tribunal), no transcript or recording of the evidence at the Tribunal hearing has been placed before me.  It is not appropriate to draw a conclusion that any error follows in this regard, such as speculating that more detail was given by the applicant that was not considered in the decision.

7. On the material before the Tribunal, it appears that it was open to the Tribunal to conclude that the harm complained of by the applicant (to the extent that the Tribunal accepted the applicant’s evidence) did not come within the relevant definitions for a protection visa.  In these circumstances, I find that this ground has not been made out.

8. As I have found that neither ground pursued by the applicant has been made out, I must dismiss the application.  It was agreed at the conclusion of argument that costs would follow the event in the scale fee.  I will therefore make orders accordingly.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 6 December 2017