Buc16 v Minister for Immigration

[2020] FCCA 1194

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUC16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1194

Catchwords:
MIGRATION – Visas – judicial review of decision regarding protection visa – no jurisdictional error committed by Administrative Appeals Tribunal – Tribunal considered the applicant’s psychological issues.

Legislation:

Migration Act 1958 (Cth), s.476(1)

First Applicant: BUC16

Second Applicant: BUD16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1488 of 2016

Judgment of: Judge McNab

Hearing date: 19 February 2020

Date of Last Submission: 19 February 2020

Delivered at: Melbourne

Delivered on: 15 May 2020

REPRESENTATION

The Applicant in person

Solicitors for the Respondents: Ms Ward

ORDERS

1. The application filed on 18 July 2016 be dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $5,000.

3. The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1488 of 2016

BUC16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application dated 18 July 2016, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 15 June 2016. The Tribunal’s decision affirmed a decision of a delegate (‘the delegate’) of the first respondent (‘the Minister’) refusing to grant a Protection (Class XA) visa (‘the visa’). This proceeding is brought pursuant to section 476(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The matter was heard on 19 February 2020.

3. For the reasons which follow I have concluded that the application should be dismissed with costs.

Background

1. The background to this matter is accurately set out in the submissions filed on 8 February 2019 on behalf of the first respondent:

   3. The applicants, citizens of India, arrived in Australia on 26 August 2009 as holders of Student (Temporary) (Subclass 572) visas. On 13 March 2014, the first applicant (the applicant), applied for the Protection visa. The second applicant was included in the Protection visa application as a member of the family unit.

   4. The applicant’s claims were set out in a statutory declaration accompanying the Protection visa application. The applicant claimed that her husband committed suicide in November 2013, when they had returned to India for a holiday. The applicant claimed to fear that her father-in-law will harm her or kill her if she returns to India, or that he will forcibly remove her son from her because her father-in- law blames her for her husband’s death.

   5. On 3 July 2014, the applicant’s representatives provided written submissions and supporting documents to the delegate.

   6. On 29 July 2014, the applicant attended an interview with the delegate.

   7. On 7 October 2014, the delegate refused to grant the applicants Protection visas.

   Tribunal’s proceedings

   8. On 6 November 2014, the applicant applied to the then Refugee Review Tribunal for review of the delegate’s decision. A copy of the delegate’s decision was included with the review application.

   9. On 1 February 2016, the applicants’ representative provided written submissions to the Tribunal.

   10. On 2 February 2016, the applicant appeared before the Tribunal to give evidence and present arguments, with the assistance of her representative.

   11. On 17 February 2016, the applicants’ representative provided further submissions to the Tribunal.

   Tribunal’s proceedings

   12. On 15 June 2016, the Tribunal affirmed the delegate’s decision not to grant the applicants Protection visas.

   (citations omitted)

Tribunal’s decision

1. The first respondent’s submissions also accurately summarise the Tribunal’s decision at [13]-[23]:

   13. Whilst the Tribunal noted the concerns presented in the psychologist report, and agreed to take into account the AAT’s vulnerable persons guidelines, it considered that the applicant was able to present and provide evidence at the hearing. It noted that no concerns about the applicant’s ability to present evidence at the hearing were raised by the applicant or her representative. The Tribunal also found the applicant’s evidence presented throughout the Protection visa process to be consistent and found that applicant to be a “generally credible witness”.

   14. The Tribunal accepted that the applicant’s marriage to her husband had been arranged, and that she did not have a close relationship with her father-in-law. The Tribunal found that, whilst her father-in-law’s treatment towards the applicant was “upsetting”, that it did not constitute serious or significant harm.

   15. The Tribunal acknowledged the applicant’s grief, and the difficulties in coping with the death of her husband. The Tribunal accepted that the applicant’s father-in-law came to believe that the applicant was responsible for her husband’s death, and that she was scared by his accusations. The Tribunal further accepted that the applicant’s father felt threatened by the phone calls from the applicant’s father-in-law.

   16. The Tribunal found that the applicant’s claims about her father-in-law’s motives for directing his anger towards her to be “purely speculative”. The Tribunal did not accept that the father-in-law was encouraged by his political friends or anyone else to take action against the applicant.

   17. The Tribunal found the First Information Report (FIR) alleged to have been registered by the applicant’s father-in-law was a letter of complaint, rather than a formal FIR. Having regard to country information, the Tribunal found that the police had advised the applicant’s father of the letter of complaint as per normal procedures and did not accept the applicant’s claim that the police had taken her father-in-law’s side with respect to her husband’s death. The Tribunal also found that the police had not investigated the applicant’s husband’s suicide. Noting that over two years had passed since the incident, the Tribunal did not accept that the police would take action against the applicant with respect to her husband’s suicide, on return to India.

   18. The Tribunal did not accept that the letter of complaint indicated that the applicant was at risk of serious or significant harm from her father-in-law. The Tribunal did not accept that the phone calls from the applicant’s father-in-law to her father indicated that she would face a real chance of serious harm or real risk of significant harm from her father-in-law on return to India. The Tribunal found that the lack of contact from the applicant’s father-in-law since February 2014, indicated that he no longer had an interest in pursuing any action against the applicant.

   19. Having regard to country information on “honour killings”, the Tribunal did not accept that the applicant’s father-in-law was motivated to harm her by issues of “honour”, and found that the applicant would not suffer serious or significant harm on this basis. The Tribunal found that the chance or risk that the applicant would be subjected to serious harm or significant harm at the hands of her father-in-law in the reasonably foreseeable future was remote.

   20. In light of its findings that there was not a real chance that the father-in-law would harm the applicant, the Tribunal found that the applicant’s father-in-law would not use his influence or connections to influence a court when considering custody of the second applicant. The Tribunal found that the applicant’s father-in-law would not kidnap the second applicant, and that the second applicant did not face a real chance of serious harm or real risk of significant harm on this basis.

   21. In considering the totality of the evidence before it, the Tribunal found that the applicants would not face a real chance of serious harm on return to India, and therefore concluded that they did not have a well founded fear of persecution.

   22. Having regard to its anterior findings, the Tribunal found that the applicants would not face a real risk of significant harm on return to India.

   23. The Tribunal concluded that the applicants did not satisfy the criteria under s 36(2)(a) or s 36(2)(aa) of the Act.

Grounds of review

1. The applicants’ application provides the following ground of review:

   THE MEMBER OF AAT DIDN’T POINT ON MY PSHOLOGY WORRIES. SHE THINK thAT NO ONE CAN HARM TO PSYCHICALLY BUT HOW I DEAD IN MY INSIDE. NO ONE can’t understand my feelings for that, THE MEMBER OF AAT IS RESPECTFUL FOR ME. BUT SHE DIdn’t understand my inside views. Like why I am worried for returns to my country.

Applicant’s submissions

1. The applicant made no written submissions.

First respondent’s submissions

1. The Minister says that there is no jurisdictional error established by the application and that the application should be dismissed with costs. In particular, the Minister submits that the applicants’ ground of review seeks the Court to undertake impermissible merits review and that it should be dismissed on that basis alone

2. The first respondent notes that, in any event, the Tribunal did consider the applicant’s psychological evidence and, after considering the psychological report provided by the applicant, the Tribunal:

   a.found that the applicant was able to present and provide evidence at the hearing;

   b.noted that the applicant’s circumstances may result in ‘serious, ongoing and irreversible harm for the applicant and her son’;

   c.thought it appropriate to refer the matter to the Department for Ministerial consideration.

3. The Minister says that these actions indicate that the Tribunal took into account the applicant’s claims regarding her psychological issues and appropriately addressed them.

Consideration

1. The only ground of application before the Court is an assertion that the Tribunal failed properly to address the question of the primary applicant’s psychological difficulties. It should be noted that it was not the mother alone that was assessed by Dr McFarlane, but matters related to the second applicant have not been pressed.

2. The issue of the mother’s mental health was squarely raised by the copious materials filed on her own behalf including her own statutory declarations and very detailed and comprehensive submissions from her own representative. She had made a claim that her mental health was precarious and that she suffered from depression (see for example CB240).

3. At CB305-306, at paragraph 54, the Tribunal noted relevantly:

   The applicant’s representative presented submissions to the Tribunal at the hearing which included an interim psychological report dated 1 February 2016, from Clinical Psychologist Dr Colleen McFarlane. The report indicated that the applicant is suffering from chronic and longstanding Major Depression since the death of her husband in 2013, and expressing concern that the ability of the applicant to cope with the Tribunal hearing is likely to be compromised by sleep, appetite, energy and mood and thinking. The opinion was provided that the applicant was vague and slowed down in comparison with her conduct in 2014, and that this may result in the applicant being slow to respond, appear vague, falter in her responses or correct herself .The Tribunal noted the contents and agreed to take into account the AAT’s vulnerable persons guidelines. The Tribunal noted that the applicant was very upset and tearful throughout the hearing but that she was responsive to questions and acute. The Tribunal considered that the applicant was able to provide evidence and respond to questions in an appropriate manner. No concern about the applicant’s ability to present her evidence at the hearing was raised by the applicant or her agent either during or after the hearing for any reason. The Tribunal considers that the applicant was able to present and provide evidence at the hearing. The Tribunal considered that the applicant was able to recall previous evidence at the hearing. The Tribunal considered that the applicant was able to recall previous events and to articulate her past experiences. The Tribunal considers that the evidence provided throughout the protection visa process has been consistent. The Tribunal found her to be a generally credible witness.

1. I note that at CB314 the Tribunal traversed the psychological reports as to the second applicant and went on to say at paragraph 93:

   Having regard to the applicant’s circumstances, in particular the compassionate circumstances regarding her psychological state that if not recognised would result in serious, ongoing and irreversible harm for the applicant and her son and having considered the ministerial guidelines relating to the Minister’s discretionary power under s417, set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

1. In those circumstances, to the extent that the ground of application asserts that the Tribunal failed to engage in an appropriate fashion with the applicant’s mental health it is clear that the criticism is not capable of being made out.

2. It should be noted that at the hearing before the Court, the applicant, who was self-represented, made no submissions that materially alter the substance of her application.

3. Furthermore, to the extent that it might be thought that the application seeks implicitly to assert that the Tribunal’s decision was in some fashion flawed, I accept the submissions of the first respondent that a careful and fair reading of the Tribunal’s decision shows the Tribunal well understood the task it was required to address, understood the relevant applicable law and came to conclusions open on the materials before it. It is not necessary to say more than this given that the applicant did not advance any identifiable other criticisms of the Tribunal’s decision. 

4. It follows that the application must be dismissed with costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 15 May 2020