CFI16 v Minister for Immigration

[2017] FCCA 1042

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFI16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1042

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – whether the Tribunal misapplied s.36 of the Act – whether the Tribunal failed to take into account certain evidence – whether the Tribunal took into account irrelevant information – whether the Tribunal conducted a fair hearing – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 476.

First Applicant: CFI16

Second Applicant: CFP16

Third Applicant: CFQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2167 of 2016

Judgment of: Judge Street

Hearing date: 18 May 2017

Date of Last Submission: 18 May 2017

Delivered at: Sydney

Delivered on: 18 May 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr D Hughes

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The First and Second Applicants pay the First Respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2167 of 2016

CFI16

First Applicant

CFP16

Second Applicant

CFQ16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ in the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”, in respect of a decision of the Administrative Appeals Tribunal made on 19 July 2016 affirming the decision of the delegate not to grant the applicants protection visas.

2. The first applicant is the mother of the second and third applicants. They have been included as members of the family unit. The applicants were found to be citizens of India, and the first applicant’s claim was assessed against that country. The first applicant applied for a subclass TU 573 (Higher Education Sector) student visa, on 4 December 2007, which was granted on 1 March 2008. On 11 March 2008, shortly before the expiry of that visa, the applicant arrived with her spouse and two sons on the subclass TU 573 (Higher Education Sector) student visa.

3. On 26 March 2008, the applicant lodged a further subclass TU 573 (Higher Education Sector) student visa application, including her husband and two sons. On 27 March 2008, the second student visa was granted, valid until 1 March 2010.

4. On 19 February 2010, the first applicant lodged a subclass TU 572 (Vocational Education and Training Sector) student visa application, including her husband and two sons. On 30 March 2010, the first applicant’s student visa was granted valid until 24 August 2011. On 8 August 2011, the first applicant lodged a further subclass TU 572 (Vocational Education and Training) Sector student visa application, including her husband and two sons as dependents, which was then granted valid until 17 September 2013. On 11 September 2013, the applicant lodged a subclass TU 573 (Higher Education Sector) student visa application, including her spouse and two sons as dependents.

5. On 16 May 2014, the applicant lodged an application for protection, including her two sons as dependents. On 16 June 2014, the applicant’s application for a subclass TU 573 (Higher Education Sector) student visa was refused as it was found that the applicant had provided fraudulent documents.

6. The delegate, on 20 May 2015, found that the applicant did not meet the criteria under the Act, and refused the grant of the visa. The applicants applied for review on 28 May 2015.

The Tribunal’s Decision

1. By a letter dated 9 June 2016, the applicant was invited to attend a hearing on 13 July 2016. Prior to the hearing, on 7 July 2016, the applicant’s migration representative provided submissions to the Tribunal. The applicant appeared at that hearing date before the Tribunal, together with her migration representative, to give evidence and present arguments. The visa application was accompanied by a statement, in which the first applicant claimed she feared persecution in India from her parents and in-laws, because she married a person from another caste, for love.

2. The applicant subsequently provided further statements, in which she made different claims, and which she said were to correct clerical errors that had been made in the first claim. In these statements, the applicant claimed to fear persecution in India from her parents and in-laws, because she was forced into an arranged marriage, from which she was now separated. The applicant claimed that the families on both sides would kill her and her children, and she claimed that there is no safety in India, because only anarchy and restlessness is on the rise.

Refugee assessment

1. The Tribunal identified the applicant’s background. The Tribunal set out the relevant law in the attachment incorporated into the reasons of the Tribunal. The Tribunal set out, in detail, the applicant’s claims to the Department, and the applicant’s claims to the delegate, as well as the applicant’s submission to the Tribunal, and the evidence given by the applicant to the Tribunal. The Tribunal set out, in detail, the applicant’s claims at the hearing and the raising by the Tribunal with the applicant, under s.424AA of information that appeared to contradict her claims about her in-laws, having no desire or being incapable of harming the first applicant or her children. The Tribunal complied with the requirements of s.424AA, and gave the first applicant an opportunity to comment or respond on and to the information, or to seek additional time to comment and respond.

2. The Tribunal drew no negative inference in relation to the first applicant’s credibility, on account of the claims in her protection visa application being radically different from the claims present in and since the 8 January 2015 statement. Nonetheless, the Tribunal did not accept, on the evidence before the Tribunal, that the first applicant’s parents-in-law would reject her sons out of dislike towards her. The Tribunal gave more weight to the fact that the applicant’s parents-in-law retired and lived out of the city where the sons had originally been raised. The Tribunal found the evidence indicates that it might not have been in the sons’ interests to move out of the particular location with their retiring grandfather, and that they went to stay with her sister. The Tribunal did not accept, on the evidence before the Tribunal, that the sons were rejected by their paternal grandparents. The Tribunal found that they evidently lived with them for several years.

3. The Tribunal was not satisfied that the first applicant’s in-laws are willing or able and inclined to harm her over the breakdown of the marriage, either directly or through other persons. The Tribunal was not satisfied, on the evidence before it, that there is a real chance that the applicant’s in-laws or their relatives would harm the first applicant over the separation and divorce of her husband.

4. The Tribunal was not satisfied that the first applicant faces a real chance of persecution from her own family in relation to her divorce or any other matter. The Tribunal found that there is adequate protection from the state authorities in the particular location for women, including divorced women, including the first applicant. The Tribunal was not satisfied, from the evidence, that her sons would face stigma, amounting to persecution, for any reason. The Tribunal made reference to the first applicant’s claims, concerning her son being affected by inadequate medical facilities in India. The Tribunal was not satisfied that this involves persecution directed at him for any reason.

5. The Tribunal had found that the first applicant could reintegrate into society on return to India without facing any significant discrimination as a divorced woman, or a woman, or a single mother, for that matter, let alone face serious harm. The Tribunal was not satisfied that the first applicant faces a real chance of being persecuted in India in the reasonably foreseeable future, for reasons of being a woman, a divorcee, or a divorced woman, or a single mother, or for any Convention-related reason. The Tribunal was not satisfied, on the evidence before it, that her sons face a real chance of persecution in India in the reasonably foreseeable future, whether as members of a particular social group characterised as her family, or for any Convention-related reason.

6. The Tribunal was not satisfied the applicants are persons, in respect of whom Australia has protection obligations under the Refugees Convention, and found that the applicants do not satisfy the criterion under s.36(2)(a) of the Act.

Complementary protection assessment

1. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that any of them will suffer significant harm. The Tribunal was not satisfied the applicants meet the criterion under s.36(2)(aa) of the Act, and affirmed the decision of the delegate.

Proceedings before this Court

1. On 3 November 2016, a Registrar of the Court made orders providing the applicant with an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

Grounds in the application

1. The grounds in the applications are as follows.

   1. The Tribunal made an error of law in reaching a decision which failed to understand the law relevant to applicants' claims, namely ss. 36(2)(a), 36(2)(aa) of the Migration Act (Cth);

   2. The Tribunal did not take into account material evidence relevant to the applicants' claims. The First Applicant is of the view that the Honourable Member formed a bias opinion of her claims and thus did not take important evidence into consideration. The Tribunal took into account irrelevant information that were not relevant to the applicants' matter;

   3. The First Applicant claims that rules of natural justice were not afforded to her by the Tribunal becauae she was not given a proper hearing and the honourable Member was bias towards her.

2. At the commencement of the hearing, the Court explained to the first applicant this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or the denial of procedural fairness to the applicants. The Court explained that, in summary, this meant that the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that, if satisfied that the Tribunal’s decision was unlawful or unfair it would set aside the decision and send it back for further hearing. The Court explained that, if not satisfied the decision was unlawful or unfair, the application would be dismissed.

3. The Court explained it would have identified the evidence and then hear submissions from the first applicant, then hear submissions from counsel for the respondent, and then hear submissions from the first applicant in reply. The first applicant confirmed that she understood the nature of the hearing, as explained by the Court.

Submissions from the bar table

1. From the bar table, the first applicant maintained that the Tribunal had made adverse findings in relation to her credit, due to inconsistencies by her migration representative. It is apparent from the Tribunal’s reasons that that is not correct.

2. It is apparent from the Tribunal’s reasons that the Tribunal disregarded the significant inconsistency between the applicant’s original claims and her later claims. However, the Tribunal found other inconsistencies and unsatisfactory features in the first applicant’s evidence, in respect of her claims, and did not accept the first applicant in relation to her claims. Those adverse findings were open to the Tribunal and cannot be said to lack an evident and intelligible justification. The first applicant complained that one of her children required medical treatment. That was a matter raised before the Tribunal, and the Tribunal made adverse findings in relation to that claim that were open to the Tribunal, on the material before the Tribunal.

3. The first applicant sought to identify current hardship that she and her children were going through, and the Court explained to the first applicant that the Court could not make fresh findings of fact and could not determine the matter on compassionate grounds. The Court, again, explained to the applicant that it could only grant relief if satisfied that the Tribunal’s decision was unlawful or unfair. The applicant indicated clear disagreement with the decision of the Tribunal. This Court does not have jurisdiction to revisit the merits of the matter. Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration of the grounds

Ground 1

1. In relation to Ground 1 in the application, the Tribunal’s reasons reflect an orthodox approach for the determination of the applicant’s claims. It is not apparent, on the face of the Tribunal’s reasons, that there is any failure to understand the applicant’s claims. The Tribunal correctly identified the relevant law and, on the face of the Tribunal’s reasons, correctly applied the relevant law. No jurisdictional error was made out by Ground 1.

Ground 2

1. In relation to Ground 2, there is no material evidence identified that the Tribunal has failed to take into account. In relation to the second sentence, there is no basis for the allegation of bias, other than, it appears, the applicant relies on the adverse outcome. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay-observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. There is nothing before the Court to indicate that the Tribunal approached the matter other than with an open mind, reasonably capable of determining the matter on its merits. No case of bias is made out. No relevant evidence that the Tribunal should have taken into account, and did not, has been identified, and there is no irrelevant matter identified that the Tribunal should not have taken into account. No jurisdictional error is made out by Ground 2.

Ground 3

1. In relation to Ground 3, the Tribunal complied with its statutory obligations during the conduct of the review. The applicants were invited to attend a hearing and, on the face of the material before the Court, the applicants had a real and meaningful hearing. On the face of the material before the Court, there was no denial of procedural fairness by the Tribunal in the conduct of the review. There is no basis, on the material before the Court, to support the assertion that the applicants did not have a proper hearing. Further, the allegation repeated that the Tribunal was the subject of bias is completely unfounded, and no allegation of bias is made out. Ground 3 fails to make out any jurisdictional error.

Conclusion

1. The application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 July 2017