CAA15 v Minister for Immigration

[2016] FCCA 487

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAA15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 487

Catchwords:
MIGRATION – Whether administrative appeals tribunal’s decision infected by jurisdictional error – no jurisdictional error

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

First Applicant: CAA15

Second Applicant: CAB15

Third Applicant: CAC15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 911 of 2015

Judgment of: Judge Vasta

Hearing date: 29 February 2016

Date of Last Submission: 29 February 2016

Delivered at: Brisbane

Delivered on: 8 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Steele

Solicitors for the Applicant: Refugee & Immigration Legal Service

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed 1 October 2015 as amended 21 December 2015 be dismissed.

2. The Applicants pay the First Respondent’s costs of and incidental to the proceedings fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 911 of 2015

CAA15

First Applicant

CAB15

Second Applicant

CAC15

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application dated 1 October 2015 and by further application dated 21 December 2015, the Applicant, CAA 15, applies to this Court for judicial review of a decision of the Administrative Appeals Tribunal which in turn had affirmed a decision of the delegate for the Minister for Immigration and Border Protection.

2. The Applicant arrived in Australia in May 2010 from Ethiopia. At that time she was married to her husband and had two children. The husband was the holder of a student Visa. The eldest son, who was born in 2009, remained in Ethiopia and the second child came to Australia with her parents. A third child was conceived whilst in Australia and born in April 2012.

3. The Applicant and her younger two children applied for protection visas.

The Claims of the Applicant

1. The Applicant and her husband separated and divorced whilst in Australia. The separation occurred due to domestic violence. The Applicant and her children left the husband and went to a women’s shelter.

2. The Applicant claims that her husband had a belief that she was being unfaithful to him. She details that he would inspect her vagina before having sexual intercourse with her so that he could assure himself that she had not been with another man. When she became pregnant with the third child, he refused to believe that he was the father of that child. Subsequent DNA tests have proved the husband’s paternity.

3. The Applicant claims that her husband had inflicted terrible violence upon her and had threatened to do acts, such as to “sew up her vagina”. The applicant claims that the husband had told many people about her alleged infidelities. The Applicant claims that her husband had told both his family and her family in Ethiopia about these infidelities.

4. The Applicant contends that she will be in danger of being killed if she is returned to Ethiopia. She says that, even though the DNA tests show to the contrary, her husband believes that he is not the father of the third child and would arrange to have the child killed if they return to Ethiopia.

The Issues

1. The issues in this case can be boiled down to whether the Tribunal is satisfied that:-

   a)the Applicant has a well-founded fear of persecution if returned to Ethiopia because she belongs to a particular group (the Convention criteria); or

   b)there are substantial grounds for believing there is a real risk that the Applicants will suffer significant harm if returned to Ethiopia (the complementary protection criteria).

2. It seems to me that there was no evidence that the Convention criteria applied in this particular case. That is because the only particular group to which the Applicant can say that she belongs is “women without partners who have children”. There is no suggestion that such a group would suffer persecution in Ethiopia simply because they are who they are.

3. The only real question for the Tribunal was whether there were substantial grounds for believing that there was a real risk that the Applicants would suffer significant harm if returned to Ethiopia.

4. To resolve this question, a decision maker needs to assess the evidence as to what is probably going to happen to the Applicants if they are returned to Ethiopia.

Criticism of the Tribunal

1. The Tribunal looked at the question of the credibility of the Applicant. It has assessed the applicant as “exaggerating” her claims of domestic violence. On any fair reading of the reasons of the Tribunal, it is obvious that the question of credibility has been the major focus of the Tribunal.

2. It is this finding that has been the subject of the application before me. The grounds of the application reflect that it is the finding of the Tribunal as to the credibility of the Applicant, which the Applicant now attacks.

3. Even though the Applicant did not put the argument in these words, it is safe to say that the submission is that the finding regarding credibility has infected the ultimate determination of the matter. Therefore, if the finding regarding credibility is not sustainable, then the ultimate finding is also not sustainable. It is submitted that this is a jurisdictional error.

The Grounds

1. There were four grounds of this application. They are:

   “The decision of the second respondent was affected by jurisdictional error for the following reasons:

   a) The second respondent took into account irrelevant considerations:

   i. that the applicant’s affidavit in unrelated Federal Circuit Court proceedings did not refer to her husband having beaten her or threatened to kill her (paras 37(a) and 45(c) – Court book p.278 and 281);

   ii. that a letter provided by the applicant’s psychologist did not include information regarding death threats by the applicant’s husband to the applicant and her children, or to acts of physical violence by the applicant’s husband towards the applicant (para 45(b) Court book p.281);

   ii. that there was no evidence of a protection order application having been made by the applicant (paragraph 37(c) – Court book p.278);

   b) Further or in the alternative, the second respondent’s finding (at paragraphs 37(a) and 45(c)) that the applicant’s Federal Circuit Court affidavit did not refer to physical violence or threat by the applicant’s husband, being a finding that was integral to the second respondent’s decision, was not a finding that was reasonably open on the evidence.

   c) By failing to consider the Refugee Review Tribunal’s ‘Guidance on the Assessment of Credibility’, relating to expert evidence, in assessing the evidence of the applicant’s family lawyer.

   d) In the further alternative, the findings of the second respondent that the applicant’s affidavit in Federal Circuit Court proceedings did not disclose violence toward her by her husband were illogical, irrational or unreasonable.

   Particulars

   1. The applicant stated in that affidavit that her husband demanded to look at her vagina to determine her faithfulness (paragraph 10 – Court book p.213);

   2. Her husband continued to be angry towards her (paragraph 13 Court book p.214);

   3. Her husband wanted her vagina sewn up (paragraph 18 – Court book p.216);

   4. The applicant was very afraid that her husband was going to do something to her or her baby son (paragraph 18- Court book p.216);

   5. The applicant spoke to “Deb” from the Sherwood neighbourhood centre about “Domestic Violence” (paragraph 19 – Court book p.216);

   6. The applicant stayed at a domestic violence centre in Brisbane (paragraph 19 –Court book p.216).”

2. Without saying anything more about the grounds, I note that there is a misconception as to what constitutes “irrelevant” matters in a proceeding such as this. A fact or a consideration is “irrelevant” only if there is a prohibition upon the Tribunal considering such matters. None of the matters that the tribunal considered could be characterised as being “irrelevant”.

The Tribunal Decision

1. The Applicant submitted that she believed that she would be the victim of “an honour killing” if she were to venture back to Ethiopia. The Tribunal, in their reasons, point to country information that describes the situation in Ethiopia. Whilst that country information describes Ethiopia as a patriarchal society that has problems with violence against women, there is no information that the practice of “honour killings” is at all prevalent in Ethiopian society. There is no quarrel with this observation of the Tribunal by the Applicant.

2. The Applicant provided a statutory declaration to the Department which set out in detail allegations of serious domestic violence against her by the husband. These allegations included numerous occasions of physical harm and death threats to her and her children, especially the third child.

3. The Applicant detailed occasions of psychological abuse and controlling behaviour by the husband. She set out numerous occasions that the husband made enquiries of her and also set out his accusations of unfaithfulness amongst her friends, her fellow church parishioners and clergy and the Ethiopian community around South-East Queensland.

4. The Tribunal then put a deal of importance on proceedings that had occurred in this Court exercising its Family Law jurisdiction. After the separation, the husband could not find the Applicant. He came to this Court seeking an information order to find her so that he could commence proceedings, through which he hoped to spend time with his children.

5. In the documents filed in this Court responding to the family law application, the Applicant did not describe physical violence to her by the ex-husband. She does not describe any threats to kill herself or the children.

6. The Tribunal remarked that there was an inconsistency between the claims made in the statutory declaration to the Department and the affidavit provided to the Court in its family jurisdiction.

7. The Tribunal then made a finding about the credibility of the Applicant. This appears at paragraph 37 of the reasons. I will reproduce paragraph 37 in full:

   “37. The Tribunal discussed the court documents with the applicant at length during the hearing. It told the Tribunal the content of the court documents caused it to have doubts regarding the credibility of some of her claims in her two statutory declarations to the Tribunal. The issues which concerned the Tribunal included:

   a. The absence of any claims of physical violence or death threats by the ex-husband in the court documents: Had the ex-husband genuinely beaten her and threatened to kill her and the children as set out in her statutory declarations to the Tribunal, it is reasonable to expect she would make the same claims in her Affidavit to the Court. The absence of those claims in Affidavit undermined the credibility of the claims the ex-husband was physically violent to her and threated to kill her children.

   The Applicant replied she was not aware there were differences between her Affidavit and statutory declarations. She had no words to explain why that was the case. She later said her counsellor told her what was in her Affidavit was enough. The Tribunal expressed concern that a trained professional in the area of domestic violence was not include (sic) information regarding death threats to the first named applicant and her children and acts of physical violence against the first named applicant by the ex-husband.

   The migration agent submitted correctly the first named applicant’s Affidavit was a response to the matters raised in the Affidavit of the ex-husband. The Tribunal agreed with that but noted the first named applicant’s Affidavit still  contained allegations of one physical threat against her by the ex-husband and that he was controlling. That the Affidavit was silent as to the various occasions of physical assaults and death threats set out in her statutory declarations was a serious reason for the Tribunal to have concern regarding the credibility of the first named applicant’s claims.

   b. Consent to the ex-husband’s contact with the children: The Tribunal noted in the interim and final orders, she consented to the ex-husband having supervised contact with the second named applicant and third named applicant. She replied that she thought it was a good idea because the children had not seen him for 18 months and the legal aid lawyer told her in Australia he had this right. The Tribunal informed the first named applicant her conversations with her lawyers were confidential and she need not discuss those with it, but she could do so if she wished to. She explained too that the ex-husband had regular telephone contact with the second named applicant and third named applicant, as recent as a few days before the Tribunal hearing. Although the Court grated the ex-husband supervised contact with the children, for the reasons that she explained, he never attended any contact session with the children.

   The Tribunal put to her its concern if the ex-husband had genuinely threated (sic) to kill her children, it had difficulty accepting she would consent to the ex-husband having even supervised contact with her children.

   c. Absence of evidence of an application for a Protection Order: The Tribunal noted from her Affidavit, she had obtained assistance from a counsellor prior to leaving the family home, resided in a women’s shelter and was assisted by solicitors and counsel. It noted there was no evidence before it of her applying for or being granted a Protection Order by the Magistrates Court against the ex-husband. The Tribunal put to her the absence of her applying for a Protection Order undermined the credibility of her claims that her ex-husband had been physically violent to her or threatened to kill her children.

   The first named applicant initially stated she did not know how to apply for a Protection Order. The Tribunal noted that the counsellor and lawyers who assister her, would know. She then said she did not speak English well. The Tribunal noted her English was good enough to communicate with the counsellor and lawyers who assisted her with the family law matter. She said she resided in the shelter for 18 months, maybe the shelter applied for her, she did not know. The Tribunal she would have attended the Magistrate’s Court to obtain a Protection Order, so she should know. The Tribunal put to her that not obtaining a Protection Order undermined her claims that her ex-husband had been physically violent to her and had threatened to kill her and her children.

   The migration agent offered to inquire with the counsellors and lawyers who assisted the first named applicant in the past about the existence of a Protection Order, which the Tribunal agreed to allow him additional time after the hearing to do so, noting too it is mindful of the first named applicant’s legal professional privilege. “

Should such a finding have been made?

1. The findings in paragraph 37 are really the major point of the Applicant’s claims. I have a distinct advantage that the Tribunal did not have. As a result of the mixed jurisdiction of this Court, I have a good knowledge of the machinations of the Family Law jurisdiction.

2. The criticisms made in paragraphs 37(b) and 37(c) are criticisms which are not properly made. It is not the fault of the Tribunal that there is a misunderstanding of what occurs in the family jurisdiction. Such reasoning by the Tribunal is understandable; however, the conclusions are not correct. I am of the view that such findings were simply not open on the evidence.

3. Notwithstanding the allegations of domestic violence, at such a preliminary stage, it is very difficult to see how a Court would not have allowed supervised time with the father. The fact that such an order was a consent order does not, and should not, diminish the credibility of the Applicant.

4. The fact that a protection order was not sought by the Applicant, does nothing to affect her credibility. Again, my experience has put me in a better position than the Tribunal. When persons escape a violent relationship, the overriding necessity is that of safety. In this case, if the Applicant is safe, there is no need for a protection order. This is because the husband would not know where she is. This point is illustrated by the fact that the husband had to come to this Court for an information order to find where the Applicant was.

5. The findings in paragraph 37(a) are in a different category. While the Applicant has made many cogent arguments as to why the Tribunal should not have made such a finding, I am not of the view that such a finding was not open to the Tribunal.

6. The allegations made in the statutory declaration are of a similar character to the allegations made in the Family Law affidavit but the fact that there was no mention of actual physical violence being perpetrated upon the Applicant by the husband is a matter where it was open for the Tribunal to find an inconsistency.

7. This is one of those matters where “the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to me made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from lead evidence, a decision cannot be said by a reviewing court to be ill logical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.” (See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at paragraph 131)

8. I am therefore of the view that it was open upon the evidence before the Tribunal for it to find that the Applicant had mildly exaggerated some of her claims.

Does such a finding infect the ultimate conclusion?

1. The ultimate conclusion was that there were no substantial grounds for believing that there was a real risk that the Applicants would suffer significant harm if returned to Ethiopia. The question for me is to decide whether that finding was open upon the evidence that I consider was properly before the Tribunal; that is, does the finding of credibility that was properly open on the evidence still allow for that ultimate conclusion.

2. There was much argument during the hearing as to how the Tribunal should have looked at the evidence of a letter from the family law solicitor. There were arguments as to the effect of the evidence of a “report” of a psychologist who was treating the Applicant. Whilst all of those arguments were nice, they were irrelevant to the real issues that needed to be determined in this hearing.

3. The best way to determine whether the conclusion was open is to look at the evidence that was properly before the Tribunal and ascertain whether, upon that evidence, the finding was open to it.

The Evidence properly before the Tribunal

1. The evidence properly before the Tribunal was:-

   a)the husband questioned his paternity of the Third Applicant despite the DNA test;

   b)the husband still claims that the Applicant was unfaithful to him;

   c)the family of the Applicant in Ethiopia had been threatened;

   d)no member of her family had been physically harmed by the husband or the family of the husband;

   e)unknown persons had come to the family home in Ethiopia inquiring who was living there;

   f)it would cost $10.00 to hire someone to kill the Applicant in Ethiopia;

   g)the father of the Applicant had been threatened that the Applicant would be killed;

   h)the father of the Applicant left home for 10 days due to stress but has since returned;

   i)the father of the Applicant has threatened to remove the Applicant’s eldest son from the family home due to harassment from the family of the husband, however the eldest son remains with the parents;

   j)there has been no escalation of the threats and nothing to suggest that these threats were going to be carried out;

   k)there had been a significant passage of time between the Applicant leaving the husband and the current position;

   l)the Applicant had left the husband and lived in a women’s shelter after she and the children left the family home;

   m)at worst, there was a mild exaggeration by the Applicant as to the level of violence inflicted upon her by the husband;

   n)the husband continued to accuse the Applicant of adultery and he made those accusations to people they socialised with in Australia and to the Applicant’s family in Ethiopian. Such actions have been distressing and degrading to the Applicant and she has suffered emotional and psychological harm because of those actions;

   o)the family of the husband would have a negative opinion of the Applicant because of these accusations;

   p)there had been occasions where there was communication between the family of the Applicant and the family of the husband and that the allegations of infidelity would have been a source of conflict between the two families;

   q)the mother of the Applicant wrote a letter in which she claims that there is still harassment of her family by the family of the husband. She states in that letter that the motivation for the harassment is that the Applicant has embezzled the money of (presumably) the husband. There is no mention in the letter of any accusation of the Applicant been unfaithful to the husband as any cause of the actions of the husband’s family.

Conclusion

1. Upon that evidence, it was open to the tribunal to find that there was “only a remote and therefore not a real risk that the applicant’s husband or his family members would significantly harm the applicant’s if they were to return to Ethiopian”.

2. The conclusions reached by the Tribunal in paragraphs 50-53 of its reasons are open upon this evidence.

3. I do not find that there is any jurisdictional error. I dismiss the application with costs fixed in the sum of $5,800.00.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 9 March 2016